A power of attorney is a document that allows an agent to represent and advocate for the principal with respect to financial and healthcare decisions. As a general rule, the more detailed and comprehensive the power of attorney is the more benefit can be derived from such a power of attorney. Unfortunately, many powers of attorney are general in nature and at times can cause more problems than they solve.
The law of agency power given to a power of attorney is governed by the "law of agency." That agency is a body of law based on statutes and court decisions developed over time to provide guidelines and to what degree an agent is authorized to act on behalf of the principal, the principal being the individual who has appointed the agent to represent him or her.
Almost on a daily basis we can read the newspaper and see stories of financial exploitation of individuals, particularly seniors. That is why our clients are concerned that by naming a person as power of attorney they may themselves become vulnerable to this exploitation by giving a broad granted power to the person they have named as their agent in the power of attorney. With that said, we try to emphasize to our clients that the person that they have named as power of attorney is acting in a fiduciary capacity and the fiduciary duty is the highest duty provided by law so that any self-dealing or misappropriation of funds could result in civil and criminal liability.
Generally, I would recommend to my clients that they execute a durable power of attorney. A durable power of attorney takes effect immediately upon the signing of the document and would last through a possible disability of the principal. A small percentage of our clients instead decide to execute a "springing power of attorney" which does not take effect until the principal becomes disabled.
The problem that may occur with a springing power of attorney is that when using such a power of attorney you must prove to bank, financial institution etc. that the principal is disabled. Typically, this would mean getting a report from one or two treating physicians. Often times this could take a significant period of time. If the agent is attempting to use the power of attorney in an emergency situation, this delay in the agent's ability to be able to act can result in significant problems.
A comprehensive power of attorney avoids the necessity of a guardianship or conservatorship. If someone who does not have a power of attorney becomes disabled, they may have no choice but to have someone petition the court to take care of their affairs. This process is time-consuming, expensive and requires the court to continually monitor the affairs of the incapacitated person while they are alive.
The comprehensive power of attorney will allow an elder law attorney to implement an effective asset protection plan. One of the first questions that I ask my clients that come to me in a crisis situation where a loved one is being placed in a nursing home is whether or not my client has a power of attorney for the incapacitated person. If the answer is yes, then I breathe a sigh of relief insofar as I know that much can be accomplished to implement an asset protection plan. Without a power of attorney, we may be significantly limited in our ability to protect assets.
A comprehensive power of attorney grants power for the agent to represent and advocate for the principal not only in financial decisions but healthcare decisions as well.
Jeffrey J. Rokisky is an elder law attorney with offices in Wheeling, Weirton, Elkins, Clarksburg and Robinson Township. If you would like to submit a question for publication, please email it to rrokisky@ rokiskylaw.com