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Five Power of Attorney Myths…

Five Power of Attorney Myths…


Powers of attorney are documents where a person names a person (their “attorney”) to make healthcare and financial decisions for them if they are incapacitated.  Such incapacity could be temporary or permanent.  Some powers of attorney are drafted so that a person gives another person power to do something because they cannot.  An example would be giving your adult child power of attorney to sign closing documents for the sale of your home because you live out of state.

Power of attorney lawyer O’Fallon, Missouri can help you draft these very important documents which are a cornerstone of any estate plan.

There are a few myths about these documents and here are five of them:

  1. Any Power of Attorney Form Will Work

The Web is an all too easy place to find a form for anything these days.  However, with a power of attorney, every state has different rules and statutes to make the document legally binding.  Forms online are often too general, do not contain details that are appropriate to your specific situation and are ambiguous.  An even bigger problem is that by the time you discover the form document you printed doesn’t work, it’s too late.  See below.

  1. You Can Sign a Power of Attorney At Any Time

Many people are unaware that you have to be mentally competent in order to create a power of attorney.  However, very often a person needs a power of attorney because they are no longer competent.

Unfortunately, if that person is incompetent, it’s too late anda court has to determine whether the person should have a guardian and/or conservator appointed.  It’s a much more dragged out process, it’s costly and can be challenged by others.

Bottomline, if someone you know is in need of a power of attorney, don’t wait.  Act quickly before they lose competence.

  1. A Durable Power of Attorney Is Still Valid After Death

A power of attorney allows a person to make decisions for another only as long as they are alive.  Once a person passes away powers of attorney are invalid.  At death, the operating documents are the person’s will and/or trust.

For a healthcare power of attorney O’Fallon, Missouri, the last thing the agent can do is arrange the cremation or burial wishes of the deceased.  This is called the Right of Sepulcher.

  1. A Power of Attorney Allows a Person to Do Whatever They Want

A person chosen to be a power of attorney has a fiduciary duty to the principal, the person who gave them authority.  That means they have to act in the principal’s best interests at all times, even if it’s not stated in the document, which it usually isn’t.

It’s important to note, however, that fiduciary duties are broken all the time.  Therefore, it’s important that a person choose a trustworthy individual to be there power of attorney.  It also helps to name someone who knows a bit about financial matters and you know will act and act properly.

  1. If You’re Married, Your Spouse Is Already Your Power of Attorney

When it comes to a power of attorney, being married doesn’t automatically make your spouse your agent.  That doesn’t mean they can’t be your power of attorney but they’ll need to be named so in the document, just like anyone else.  You’ll also need alternates in case you and your spouse are both incapacitated at the same time.

For healthcare decisions, if you don’t have a healthcare power of attorney, you spouse is considered your first next of kin and can make decisions above anyone else.  But the next of kin after your spouse may not be your choice, so it’s necessary to create a healthcare power of attorney.  In so doing, you’ll also create a much needed healthcare directive, sometimes referred to as a living will or advanced directive.  This document provides end of life instructions about medical treatment you either would or would not want to have withheld if a doctor determines it can’t heal you.

Cremation versus burial…

One of the difficult parts of estate planning is deciding your wishes as to whether you want to be cremated or buried when you pass away.  In my estate plans, these wishes are expressed in the healthcare power of attorney I create for my clients.

Since I am not in the funeral business, it’s not my job to counsel clients as to the best funeral plan for them.  But I do need to know a little bit about the process so that I can explain the options to clients.

There are two options:  burial or cremation.

If you want to be buried, you need to decide where you want to be buried.  You can buy plots at cemeteries in advance or just indicate that you want to be buried and let your family decide where that might be.  From a cost perspective, burial is more expensive than cremation because there are additional costs, with a casket being the most obvious one.

Cremation has become more popular in recent years for a few reasons.  First, it is a cheaper option than burial.  Second, in some cases, people think it is more intimate for their families, as they can give instructions as to how their ashes are kept or, in many cases, where and how their ashes are spread.  I recently had a married couple tell me to include instructions that their three sons are to take a trip with their ashes back to several locations where they had family vacations when the sons were young.  The idea being that the trip would bring their sons together during a difficult time and ensure that they honored their parents at the same time.

There are obviously many personal reasons to choose burial over cremation or vice versa.

You also need to let your family know what type of funeral you would like.  This could even include the type of food served, who to invite (or in some cases, not to invite), where to have it, what type of music to be played and so on.  Many people associate burial with more traditional funerals and cremation without, but you can do whatever you want.  You can be buried or cremated with as much or a little pomp and circumstance as you would like.

Some of my clients get very specific and some of them do not.  The important thing is that you identify your wishes in your estate plan so that your family doesn’t have to guess.