(This is the sixth in a series of seven articles to help you understand what you do know, don’t know and should know about estate planning.)
What is a power of attorney and why do you need one or more? The answer is actually fairly simple. A power of attorney is a document that is created while you are well that allows other people to make decisions for you if there ever comes a time when you are unwell and cannot make your own decisions. It is so important because you can lose the right to decide who will make decisions for you if something bad happens and you haven’t put your wishes in writing beforehand. That’s a big deal for everyone, whether you are married, in a domestic partnership, or single.
If you become incapacitated, state law will determine who in your family has the power to make medical decisions for you, even if you are estranged from them. Of course, even without a medical power of attorney, your spouse will be able to make medical decisions for you. But what if your spouse can’t for some reason? A good medical power of attorney will grant the same rights to other trusted people if your spouse cannot take care of you – and those people do not have to be relatives. Perhaps your best friend is a nurse or doctor or works at NIH. A person like that would make a great choice as a healthcare agent, if he or she is willing. (You do need to ask first!) Naming your own decision-maker can give you peace of mind that your wishes will be respected versus the unknown consequences of that role going to a faraway family member who doesn’t approve of your “lifestyle.”
Yet, the lack of a medical power of attorney is not what causes the biggest problem for most folks. If you become incapacitated, there will be hundreds of other decisions to be made that have nothing to do with medical care. Who will pay the bills, manage your money, take care of your home, and look after your spouse or partner? That’s where a financial power of attorney comes in. This document grants important, broad rights to people that you trust to manage all of your assets when you cannot. That’s incredibly important because no one gets the right to access your personal assets automatically, even a spouse. If you have a joint checking account, your spouse is still going to be able to write a check even if you’re incapacitated, but that’s the extent of it. What if there’s a need to withdraw money from your retirement account to pay the mortgage? Too bad, because without a power of attorney, even your spouse will be out of luck. Need to sell a house that’s no longer suitable? Same answer.
The messy workaround for not having a financial power of attorney is that someone has to go into court and file a guardianship petition just to get the powers that you could have given in a simple document. That’s a very expensive alternative in most states and one that should be totally unnecessary. Worse yet, the person filing the petition might not be the same person that you would have chosen had you signed a financial power of attorney. These problems are so easily avoided that the real mystery is how come everybody doesn’t have these documents?
(This column is not intended to provide legal advice, but only general guidance that may or may not be applicable to your specific situation.)
Larry Jacobs has helped hundreds of same-sex couples and LGBT singles in the Washington area protect their assets and loved ones through partnership planning. He is a partner at McMillan Metro, P.C. and has practiced law for 41 years. Learn more about his practice at PartnerPlanning.com.