Having a power of attorney is an important part of your estate planning.
Frighteningly, most Americans don’t have the health care type of power of attorney ( “Advance Health Care Directive” in California) and “only about a quarter of Americans currently have an advance directive — like a living will,” The American College of Emergency Physicians reports.
Learn more about the significance of this document, as well as transferring a power of attorney if needed.
A power of attorney is a legal document in which you (the “principal”) appoint someone you trust (known as your “attorney-in-fact” or “agent”) to make decisions and act on your behalf.
The person you trust doesn’t have to be an attorney, but you should have a lawyer draft your power of attorney documents as there are many different types of powers of attorney and just as many types of provisions to be included or excluded.
There are different types of power of attorney. An attorney-in-fact under a power of attorney for finances or property would be able to make decisions regarding assets that you own, such as your home or other real estate and accounts. A power of attorney for personal care allows your attorney-in-fact to make medical decisions on your behalf and usually is a standalone legal tool, or may be an element of an advance directive, along with a living will.
These legal documents state your medical wishes if you are unable to express them yourself.
An advance directive, living will or power of attorney can be changed at any time, simply visit your attorney to do so. When transferring a power of attorney you do not need to notify the person acting as your attorney-in-fact, but you run the risk that he or she may act in good faith reliance upon the power of attorney which could still allow any action taken to be deemed valid.
However, you should ensure your lawyer is aware that you are making a change to an existing power of attorney so that they can ensure the wording used revokes all previous power of attorney documents that you have and lets the attorney determine whether to notify the current attorney-in-fact or not.
The only condition you must meet in order to change your power of attorney is legal competence.
“So many times I get a phone call from someone who says ‘I just got certification from my dad’s doctor to state that he is not competent so I can have you do a power of attorney and living trust for him,'” says Stuart Furman, Esq., an elder law attorney in California for over 34 years and author of the award winning books “ElderCare Ready Book“and “ElderCare Ready Pack.”
“For some reason people do not grasp the concept that one needs to be competent to execute legal documents… once Dad [or anyone] lacks legal capacity, then he can no longer sign any legal documents including a power of attorney or living trust, which was intended to be used if Dad became incompetent. The only recourse is then a conservatorship or guardianship proceeding through the court, which is a very costly and time-consuming process,” Furman explains in the “ElderCare Ready Book.”
There are a number of situations in which you should change your power of attorney. These include:
For more information about a living trust, will or power of attorney, read: “5 Misconceptions About a Power of Attorney, Living Wills and Durable Power of Attorney” or contact A Place for Mom’s legal expert Stuart F. Furman, Esq.
Do you have experience transferring a power of attorney? We’d love to hear more about your personal experiences with these documents and this process in the comments below.