Summary: Like almost any legal document, there is confusion and misunderstanding that sometimes surrounds the legal document known as a power of attorney. By educating yourself about what these documents can (and cannot) do, you can develop a greater knowledge about how they function as an integral part of a complete estate plan, and have the peace of mind that goes with understanding which claims about these documents are actually just myths.
1) Signing a Power of Attorney (POA) document means surrendering control of your right to make your own decisions. This is a common misconception about POAs. This one is not true on a number of levels. First, in some states, you can execute what's called a "springing" POA. That means that the POA does not become effective, and the agent you name in the document does not possess any authority, until you have been properly declared to be mentally incompetent and unable to make your own decisions. Once you're declared legally incompetent, you've lost your ability to make your own decisions, anyway. All this type of POA does is put into writing the person you want to make your decisions once you cannot make them for yourself. In doing so, this may possibly reduce the need to go to court to have a judge appoint a conservator or guardian over you. Even if your POA is immediate, and not springing, you still have nothing to fear. Your POA simply adds another person (whom you've named) who can make these decisions. If, for example, you create an immediate POA for certain financial decisions that names your son as your agent, all that means is that, as long as you're alive and competent, either your son OR YOU may make those financial decisions on your behalf.
2) You can only name a licensed attorney to act on your behalf under a POA. This is also not true and a misunderstanding of the terminology involved. A person who has passed the bar exam and been sworn in by their state's Supreme Court is an "attorney at law." Yes, it is true that another name for an agent named under a POA is an "attorney in fact," but there is no requirement that your attorney-in-fact have any sort of legal education, training or experience in order to be your attorney-in-fact. Your state may have certain requirements on who may serve as an attorney-in-fact, but none of those requirements have anything to with whether or not your proposed agent is, or is not, a licensed attorney-at-law.
3) POAs are only for seniors. This isn't true and it can be a dangerous mistake for younger people to make. You are never too young to have a complete estate plan, including POAs, in place. One does not have to be older to suffer a sudden traumatic illness, be seriously injured at work or in a car, or suffer some other sort of major calamity that causes a loss of mental capacity or even premature death. If you care about what happens to your wealth, your minor children or yourself (or both,) then you need a complete estate plan in place. Having POAs in place will not involve giving up any control while you are alive and have mental capacity and, if something should happen that triggers a loss of capacity, then your POAs may be exactly the sort of planning needed to prevent your family from having to go through potentially expensive and stressful court proceedings to get a conservator or guardian named to make decisions on your behalf.
They say that knowledge is power. This is definitely true when it comes to estate planning. By learning what information regarding estate planning is accurate and what are just myths, you can get a better handle on what your estate plan can do for you, and be better equipped to take an active role in creating or updating your plan to achieve the goals you want.
This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com.
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