Protecting yourself and your children with Powers of Attorney
This article is not intended to provide legal advice, as laws vary from state to state. Rather, it’s a brief overview of the subject.
A Power of Attorney is a formal document that gives someone the right to act on your behalf. While you may be familiar with the concept, there are actually various kinds of Power of Attorney documents, some of which can be used to protect you and your children.
More specifically, a Power of Attorney signed by you says to whoever receives a copy: “I have given [name] the power to make decisions about X, and act on those decisions, to the same extent as if I were making the decisions myself.” In other words, there are now two of you who have the same powers with respect to X.
Three things to know about these documents:
1) They are valid until revoked in writing.
2) They can become effective as soon as you sign, or on a specific date, or on the occurrence of an event. (See durability discussion below).
3) If someone relies on the power of attorney in good faith to do something requested by the person you appointed, he or she can’t be liable, even if what they did was something you wouldn’t have asked for or didn’t want.
The legal term for the person to whom you are giving the power to make personal and business decisions for you is the “attorney in fact” (AIF). Who should you appoint? There’s no law which requires you to select any particular person as your AIF for any kind of power of attorney. For example, being married doesn’t automatically mean you have to select your spouse as your AIF for a health care power of attorney. You’re free to choose any person you trust and whom you believe will follow your wishes.
Different Types for Different Purposes
General Power of Attorney is basically a financial document, allowing your AIF to open and close bank accounts, buy and sell stocks, bonds and real estate, and do everything you could do with your money and your assets. Even if you don’t have a lot of money, it might be a good idea for spouses to have mutual ones.
With a Limited Power of Attorney you appoint an AIF to act on your behalf with respect to a narrow subject, or set of circumstances, or a period of time. For example, you and your spouse (or just you, if you’re a single parent) have to go out of town, but school is in session and your child can’t go with you. You might give a power of attorney limited to educational and medical issues to Grandma Jane, Uncle Joe, or your sister-in-law Beth. You provide a copy to the principal’s office at school, and to the family doctor(s), so if a need for a decision arises, they know who to contact and who has the power to make decisions in your absence. Once you get back, you send a short letter to the school and the doctor(s) revoking the power of attorney.
True, you may be reachable while you’re gone—after all, you do carry your cell phone everywhere—but a situation may arise where calling you doesn’t work, or the matter is urgent enough that there’s no time to try. This is a useful tool to protect your child while you’re away.
The flip side of this is a situation in which you stay at home, but your child goes away, such as to summer camp or a school field trip. It’s likely that the sponsor of the event will have a form for you to sign giving them power to handle medical issues. If they don’t, it might be good to ask what their policies and procedures are in the event of a medical emergency.
Limited powers of attorney can also be used for financial matters, i.e., giving the AIF authority to handle transactions with respect to one particular issue.
Health Care Powers of Attorney is just what it sounds like. You’re giving your AIF the power to make medical decisions for you, when you can’t. If you’re in a car accident, unconscious, and surgery is needed, your health care AIF can authorize it, and other treatment, until you wake up and can take the reins back. You might also consider a health care power of attorney with respect to your children, not just for those out-of-town trips, but for any circumstance in which your child requires medical attention and you either cannot be reached or you are unable to act—such as in the auto accident scenario above.
In Missouri and Kansas you can obtain free health care powers of attorney forms on line from the Missouri and Kansas Bar Associations. These are only for adults to execute. Scan the QR Codes to link to the forms.
Health Care Directives are intertwined with health care powers of attorney. This document provides direction and instruction for your health care preferences in particular circumstances, such as a Do Not Resuscitate order. Your instructions can be as narrow or as broad as you wish, and with this document, your health care providers and your health care AIF know what your wishes are in particular circumstances. With respect to a health care directive for your minor children, you should consult an attorney.
Any power of attorney is a revocable document. Whatever powers you gave away, you have the right to take back. Customarily, a power of attorney automatically ends the moment you become incapacitated and are unable to make decisions for yourself. The law, however, allows for Durable Powers of Attorney, which “endures” even while you are incapacitated.
“Durability” provisions can be included in any type of power of attorney, though they’re most often used in health care ones. Consider this scenario: you and your husband have mutual durable general and health care powers of attorney. You’re in a car accident and suffer severe brain injury, from which you are unlikely to recover. Or later in life, aging and Alzheimer’s affect your capabilities. The durability provisions kick in when one doctor says you are incapacitated and cannot make decisions about anything. (Sometimes agreement by two doctors is required.) To protect yourself and your family, any power of attorney you sign should contain durability language.
Powers of attorney are useful devices for meeting a variety of needs. While online forms are available in most states for durable health care powers of attorney, you should consult a lawyer about any others, whether it’s a power of attorney you want to create, or one you’re being asked to sign.
Virginia Cullan is an attorney who thinks there is nothing more important than family. She practices law with her two brothers Dr. Sam Cullan and Dr. Gene Cullan as well as two nephews, Dr. Pat Cullan and Dr. Joe Cullan. The firm primarily handles cases involving children injured at birth, serious injuries or wrongful death occurring in vehicular accidents, and medical negligence cases. For more information, visit DoctorsPracticingLaw.com or call 816-861-7600.