One highly recommended tool is a power of attorney (POA) when planning for the future. Having this set up before it’s needed can prevent decisions being made on your behalf that you wouldn’t have wanted. It can also help prevent situations from being even more stressful for your family and loved ones. The key is choosing the right person to be your power of attorney. That person is often–but not always–a spouse. Here’s what you need to consider.
What Is a Power of Attorney?
A power of attorney is a legal document that allows the person you name as the POA to make legal or financial decisions on your behalf at certain times. In California, there are three types of POAs.
- Health care POA. This is activated when the person who drew up the POA becomes incapacitated and can’t make their own health care decisions. The person named the health care POA can then legally make those decisions for them.
- Limited POA. This type of POA is usually used for a highly specific purpose and doesn’t offer a broad range of decision-making. One example is if someone wants to buy or sell property in another state but isn’t able to travel there to handle the transaction themself. They could assign someone the limited POA to handle the sale on their behalf.
- General POA. Unlike the other two, which have specific functions, a general POA gives someone the ability to handle various financial matters.
When Does a Power of Attorney Activate?
There are two ways a POA is activated, with different starting times for each.
- Durable POA. This can apply to either the limited or general POA. It means as soon as the POA is signed, it goes into effect and remains in effect until you change or cancel it.
- Springing POA. This can apply to the limited or general POA, but it’s the only type of health care POA. It means that even once signed, the POA doesn’t go into effect until a certain time or for specific reasons. Usually, a springing POA is used for someone who’s become medically incapacitated. It might be used for a health care POA or one of the other types for someone to handle financial or business matters while you’re incapacitated.
What Factors Should I Consider When Choosing Someone as My Power of Attorney?
There are several. First and foremost, it needs to be someone you trust to abide by your requests and wishes. If you can’t trust them to do that, it’s better to find a different person. Here are some additional considerations:
- They should live nearby. Having someone thousands of miles away when you suddenly are incapacitated and can’t make decisions can cost precious time, and your wishes may not be known while the medical team waits for the arrival of the POA.
- They must be someone ready to stand up for your wishes. If you have specific requests, such as no feeding tubes, the POA needs to be ready to assert that at the hospital.
- They understand your wishes. The POA should be someone with whom you can talk these things through. If they don’t know what you want, they will have a hard time acting on your behalf.
If your spouse fits these requirements, then they may be the right choice for your POA. But if you suspect they wouldn’t honor your wishes or aren’t assertive enough, it might be best to choose someone else.
What if I Don’t Have a POA?
POAs are designed to protect your interests if you become incapacitated. Without one, it’s possible that the courts would intervene and appoint someone as your representative, and your family would have no say in who was chosen. It also means that critical decisions could be made by someone who doesn’t know you, your values, and your requests. This can have profound implications both medically and financially.
People should consider setting up POAs when they can, before disaster strikes. Working with an experienced estate planning attorney can help you make sure you’ve chosen the right type of POA and the right person to trust with it.
Can I Change My Power of Attorney Later?
Absolutely. A power of attorney is not set in stone, and you have the right to change your mind about who should represent you at any time. Situations that cause a loss of trust are prime examples of someone changing their POA. For instance, a divorce or a falling-out with someone you previously trusted may cause you to reconsider, and that’s entirely valid. You do need to be considered sound of mind at the point of making the change.
Where Can I Get Help with a Power of Attorney?
Call us at 949-260-1400 to work with one of our experienced estate planning attorneys. Our Orange County, California attorneys are well-versed in all aspects of estate planning, including setting up powers of attorney, wills, advance health care directives, and trusts.