Elder Law Report
Elder Law Report
Don't Wait Until It's Too Late: Setting Up Power of Attorney Before You Need It
What happens when you can't make decisions for yourself? Who handles your finances or communicates with your doctors? The answer might surprise you—especially if you haven't prepared the right legal documents.
Attorneys Brenton Begley and John Miller dive deep into the world of Powers of Attorney (POAs), revealing why these documents are critical for everyone, regardless of age or health status. They expertly break down the differences between General Durable POAs for financial matters and Healthcare POAs for medical decisions, explaining how comprehensive documents serve as your shield when unexpected events occur.
The conversation tackles one of the most common hesitations people face—the fear of losing control. Both attorneys provide practical insights into options like "springing" Powers of Attorney that only activate under specific circumstances, while emphasizing that selecting someone you truly trust is paramount. As John notes, "You have to trust the person that you're appointing as an agent" since they'll be making significant decisions on your behalf.
Perhaps most compelling is their warning about waiting too long. Once incapacity occurs, it's too late to create these documents, leaving families with no option but expensive, time-consuming guardianship proceedings. The attorneys share valuable guidance on selecting the right agents, navigating family dynamics, and ensuring your affairs remain in trusted hands even during your most vulnerable moments.
Ready to protect yourself and your loved ones? Visit www.mcelderlaw.com to schedule your free consultation or call 704-259-7040 to learn how McIntyre Elder Law can help you create Powers of Attorney tailored to your specific needs.
Hi and welcome to the Elder Law Report. My name is Brenton Begley, I'm an attorney and partner with McIntyre Elder Law and I'm joined today by John Miller, one of the attorneys in our Hendersonville office. Hi, john, hi, brenton, a power of attorney in place, knowing that there are two major types of powers of attorney First, the general durable power of attorney and then, second looks like the background effects are on Second, the healthcare power of attorney, which is, you know, obviously for healthcare purposes, and the general durable power of attorney being for legal and financial purposes. So, john, why would it be important for somebody to have a power of attorney put in place?
John Miller:Well, I think it would be important for everyone to have a durable power of attorney in place, because you never know what's going to happen. A durable power of attorney allows someone to come in and step into your shoes and do the type of transactions that may need to be done. Let's say, for example, that you are in the hospital and need banking transactions performed. That durable financial power of attorney would allow that to happen. Basically, you never know what's going to happen, so it's good to have that in place.
Brenton Begley:Right. So you know we don't have a crystal ball and we really don't know what someone's going to need to do on our behalf. So you know a really good power of attorney and you said it well you know, a power of attorney appoints somebody to act on your behalf as if they were you for legal and financial purposes, health care purposes. So they basically step in your shoes. So we don't know what they're going to need to do.
Brenton Begley:So the power of attorney, if it's well written, is going to be comprehensive. It's going to cover everything, right? Because maybe you know, maybe I have bank accounts, maybe I have IRAs, maybe I have a retirement account, right? Maybe I have a life insurance policies, real property Lord knows what may need to be done with those things to help protect it If I am ever in a situation where maybe I'm incompetent, incapacitated need you know indefinite long term care? Maybe I'm incompetent, incapacitated, need you know indefinite long-term care, you know we don't know what an attorney may recommend to help protect those assets, get me qualified for, like a much needed benefit to pay for that long-term care. So really, if I'm going to put a power of attorney in place, I want to make sure that it is comprehensive and covers really anything I can do for myself.
John Miller:That's certainly true, and that's actually one of the things that I like about our power of attorney that we prepare. It is very comprehensive and covers situations that maybe folks haven't thought of, maybe even that other attorneys haven't thought of.
Brenton Begley:Right, yeah, and you know, and you might hear too well, John, I don't want to give up control, you know I don't want to, I don't want to have that. So I don't think I want to do a power of attorney right now because I don't want to give up control. What would you say to somebody who has that type of concern?
John Miller:Well, a couple of things. Number one you can have a power of attorney that's called a springing power of attorney that comes into effect. Have a power of attorney that's called a springing power of attorney that comes into effect, for example, when two positions may say that you are not competent to handle your affairs. So you certainly could have a springing power of attorney that comes into effect when needed. The other thing I would say is this Trust the person that you are appointing as an agent. They're going to be speaking for you, signing documents on your behalf, and that's that's very important. You have to trust the person that you're appointing as an agent. I had someone earlier this week that they wanted to put a lot of limitations on the power of attorney. So one of my questions to them was you know, do you really trust this agent? Right, and I think that's a concern and something you want to make sure that you deal with.
Brenton Begley:Right, yeah, I mean that's very perceptive of you because you know you may have an individual who just has a difficulty trusting other people, even if they are trustworthy, and then you may run into folks who you know have, you know, no difficulty trusting people, but the people that they have in their life may not be, they may have not had these conversations, may not know how trustworthy maybe. Naming a child is One of the things that I see a lot. A concern that a lot of clients have is that if they name one child, how will that child kind of communicate and speak to the rest of the family, right, sure?
Brenton Begley:That could be a difficulty there. But what I tell clients all the time is it's not a popularity contest. That could be a difficulty there. But what I tell clients all the time is it's not a popularity contest. You know I'll have.
Brenton Begley:I ask people, hey, what you know? Have you given any thought to who you want to name as power of attorney? And they'll say, well, you know, my oldest son, he's a accountant. Or my oldest daughter, she's a nurse. Or you know, they're sophisticated, they're good at doing this for themselves, so I think they do a good job for me. But you know, if I name them, I think you know one of the other children will be jealous or will be offended.
Brenton Begley:And you know there's two things I say to that. Number one it's not a popularity contest. You need to name the person that you trust and who's going to be able to do the job and sophisticated enough to do the job. If someone is not able to balance their own checkbook, then they're certainly not going to be able to do it for you, right? And then the second thing is is that you know that just tells you that you need to, as the patriarch or matriarch of the family, encourage good communication between your children or your loved ones, because you know that's something that we can't give you as a legal tool. Good communication among family members but we do encourage as part of the estate planning process, is tell people what's going on and why and what the attorney recommended, and the attorney can always help facilitate those conversations as well. So what about, you know, health care power of attorney. Why might somebody want to have that health care power of attorney put in place?
John Miller:Well that again, you never know what's going to happen. I think most hospitals, or even even day day clinics, they're going to ask you when you go in, do you have a health care power of attorney in place? And you want to have that in place because someone may have to make a decision on your behalf. You may be under general anesthesia, something may happen as far as a complication. So, again, it's easier to have that documentation in place than to have to be potentially rushing around at the hospital or clinic to fill out the document that they may hand you. You may be under anesthesia or you'll certainly be potentially nervous about the procedure, so it's better to have that in place ahead of time.
Brenton Begley:Right, that's your own document too. It's not even a real health care power of attorney, it's just an internal document that says who they can talk to. They can't talk to you because they put you under anesthesia or something similar. You know that's. And attorney generally, you can name one or multiple people under that power of attorney. I personally think, too, that it's good to have one quarterback on the field at a time, right, so you can give them one agent, give them the authority. But it's good to have multiple backups there and available, if at all possible, right, so you maybe name your, your spouse first, and then a child second, and then maybe another child, something like that. That's, that's what I see a lot of people end up doing exactly and I think again, you you mentioned that you want to.
John Miller:You want to put someone in that role that's the best equipped to handle it. So if you have a son or daughter that's a CPA, great. They may be the perfect fit for the durable financial power of attorney. They may not be for the health care power of attorney. You know, you may be lucky enough to also have a son or daughter that's a nurse and they can help you with that a nurse and they can help you with that.
Brenton Begley:And two, you mentioned something I want to go back to rushing around trying to put it in place what happens if you do become incompetent or incapacitated? Can you still do a power of attorney at that point?
John Miller:No, no. You are cut off from doing that. You're not competent. And then you're looking at a guardianship, which, as we know, can be a very expensive and time-consuming process.
Brenton Begley:Can be Absolutely. Yeah, it sounds like power of attorney is an incredibly important thing to have in place up front, way before you ever need it.
Brenton Begley:Absolutely place upfront way before you ever need it. Absolutely. Well, there you have it. So if you have questions about power of attorney how they work, how to set them up, what the effect that that power of attorney may have on your overall estate plan, what the agent may be able to do on your behalf with the power of attorney, or who best to name as an agent under power of attorney, give us a call. We'd love to help. Okay, you can get more information by visiting our website, wwwmcelderlawcom, and you can also use that same website to schedule your free consultation today, or give us a call 704-259-7040. This has been the Elder Law Report, john. Thank you very much. I'll see you next time. Thank you, brenton. See you next time.