Power of Attorney
A Power of Attorney (POA) is a document that gives legal authority to another adult to act on your behalf regarding financial matters and medical related decisions. There are two basic types of POA’s, Financial Power of Attorney and Health Care Power of Attorney/Power of Attorney Appointing Health Care Representative. Both are important and allow the named adult to act on your behalf. You may name the same person for both your Financial Power of Attorney and your Health Care Power of Attorney or you may name different people. We can discuss the reasons for one or the other. A POA should normally be a Durable POA. The term Durable refers to it surviving incapacity of the maker. If the POA does not state it is durable, the authority granted will immediately end upon the maker, you, becoming incapacitated. Most POA’s are durable so please excuse if we leave out the term “durable” when discussing POAs. There can be situations where someone may not want the POA to remain effective if they become incapacitated or incompetent.
A Durable Power of Attorney can be the most important document while you are alive if you become incapacitated or incompetent. Every person, even younger persons, should have a Durable Power of Attorney. It probably will never be needed, but should a person become incapacitated it can save thousands of dollars and much stress on family and friends. A person must be mentally competent to create and sign a POA. As long as you are still competent you can modify or revoke the documents at any time.
Durable Power of Attorneys can be effective immediately or only become effective upon a certain event, such as incapacity. We, at Perry Law Office, encourage all to make their POA effective immediately upon signing. The main reason is that it could prevent unnecessary delays where time may be of the essence. If the POA is to take effect only upon you becoming incapacitated or incompetent, two (2) doctors must determine and sign letters stating you are incapacitated. A POA that is effective immediately grants the necessary powers, to the designated person who may immediately act and make decisions on your behalf. At no time does this mean the maker, you, loses any authority or ability to make decisions on your own. In fact, you can make all your own decisions until you are unable or unwilling to make them. You may revoke anyone’s authority you gave them or grant new authority, as long as you are competent.
If an adult becomes incapacitated and does not have a pre-existing power of attorney, adult guardianship of the person may need to be obtained through the court which can be an expensive and time-consuming process. While no one intends on becoming incapacitated, naming a power of attorney is a simple, economical way of giving your family peace of mind. It is like buying insurance, you probably will never need it, but if the need should arise it might be the best money you ever spent. Power of Attorneys can also be drafted for limited purposes. Most often this is done for purchasing or selling a house or completing tax returns in your absence.
Durable Financial Power of Attorney
The term Durable Power of Attorney can be confusing as when most people refer to this they are referring to a Power of Attorney (POA) that only grants powers to make financial decisions. To grant health care decisions you must create a Durable Health Care Power of Attorney. A Durable Financial Power of Attorney allows you to name someone to make financial decisions on your behalf, such as open and close bank accounts, sell or buy property, file taxes. The list is variable and can be quite extensive. You may grant or not grant any financial power as you see fit. The attorneys at Perry Law Office can help you determine what is right for your situation.
Durable Health Care Power of Attorney
Like the financial power of attorney, you can also have a Durable Health Care Power of Attorney. This is commonly also referred as a Durable Health Care Power of Attorney – Appointment of Health Care Representative. The person that is named as your Health Care Representative can make health care decisions for you such as consent or refuse treatment, access your medical records, place you in a nursing home, move you from one hospital to another, or determine whether to use life-prolonging procedures or not if you are unable or do not want to make those decisions for yourself. As long as you are competent you are able to retain the right to make all those decisions for yourself even if you have created a Durable Health Care Power of Attorney document.
Transfer on Death Deed or Transfer on Death Clause or Payable on Death Clause in a bank account
This allows you to name a beneficiary on a deed, bank account, or other assets and upon your death, the deed, money in a bank account, or other assets will be transferred to your named beneficiary and avoid probate. Transfer on death deed allows you to designate who the property is to be transferred to, but no ownership is transferred until you die. You, as the owner, can change or revoke the designation at any time and still retain complete control and ownership while you are alive.
A Living Will is also called an Advance Directive. This document allows you to designate whether you are put on life-prolonging equipment if you become in a vegetative state and there is no hope of recovery and without going on life support you will die. A Health Care Representative who you appointed in your Durable Health Care Power of Attorney may also make this decision.
- A living will can not override different oral directions given by you and cannot be used as a vehicle for euthanasia or for a medically supervised suicide. It is effective only if a terminal illness has been diagnosed by a medical doctor. A terminal illness under Indiana Law is an illness which will result in death within a short period of time if life-prolonging procedures are not used. A “short period of time” is not specifically defined in Indiana Law and will depend on the circumstances of each particular case.
- If, after you have executed one of these declarations, you change your mind, you can revoke any declaration you may have made either by signing and dating a written document to that effect, by physically destroying the declaration (or by having someone else destroy it in your presence) or by orally expressing an intent to revoke. No revocation is effective until it is communicated to your attending physician.
Contact Our Fort Wayne Attorneys Today
Do not delay, contact the lawyers at Perry Law Office today at (260) 483-3110 to discuss preparing your Durable Power of Attorney today.
If I have a Durable Power of Attorney, do I still need a will?
Yes, the power of attorney is no longer valid after you die.
Who can I grant Power of Attorney to?
You can grant power of attorney to any adult, but it is better to have someone that lives close to you if possible.
Can a Power of Attorney by challenged?
Yes. Just like a will, both can be challenged based on a claim that the granter was not competent or was under duress at the time the document was executed-signed.
Who can override a Power of Attorney?
You can override a power of attorney if you are still competent to do so.
Can a Power of Attorney be changed without consent?
You have complete control to change or revoke your power of attorney as long as you are competent to do so.