Why are Powers of Attorney so important?

You make important choices every day about your lifestyle; how to pay your bills, how to combat illnesses, how to accumulate wealth and how to achieve your retirement goals. The ability to make these everyday decisions are things people take for granted.  But what if you were in a sudden car accident or suffered another debilitating injury that left you unable to make those choices?  What happens when you can’t make decisions regarding your medical treatments due to a mental or physical incapacity?  Who pays the bills and keeps your house out of foreclosure?  A Durable Power of Attorney answers these questions by nominating someone to take care of making important medical decisions on your behalf, and making sure bills and property are taken care of.

What Does “Durable” Mean?

Believe it or not, not all powers of attorney continue to be effective after you become disabled.  Some powers of attorney actually become ineffective after your incapacity.  Missouri law has specific language that must be included in a power of attorney to make it “durable.” That means it remains effective after you become incapacitated.  It is absolutely critical that your power of attorney has language indicating it is “durable.”

Durable Health Care Powers of Attorney

Durable Health Care Powers of Attorney allow someone to step into your shoes during your disability. They can make medical decisions on your behalf when you are unable. This is critical. Your doctors and hospital staff must have someone to speak to, share medical opinions with, and get the authorization to perform potentially lifesaving treatments and surgeries.  A Durable Health Care Power of Attorney may be your most important estate planning document.

Durable Powers of Attorney for Financial and Property Matters

Durable Powers of Attorney for financial and property matters allow someone to step into your shoes during your disability. It gives them access to bank and other financial accounts and safety deposit boxes. It allows them to buy and sell real estate and make sure your bills get paid on time.  Without a Durable Power of Attorney for financial and property matters, you may not have anyone to make mortgage and car loan payments. Those assets could be foreclosed or re-possessed.  Power of attorney documents can also allow someone to do additional estate planning for you.

What Happens If I Don’t Have a Power of Attorney?

Without a power of attorney in place, your spouse or other family members will have to petition the court to have you declared mentally or physically incapacitated. The court will have to appoint a guardian and conservator.  Before someone can be appointed to take care of you and your finances, the court will have a “guardian ad litem” appointed.  That’s an attorney chosen by the court to investigate the matter and make a recommendation as to who is the best choice to take care of you.  This process can take anywhere from 2-3 months or more, depending on the situation.  The attorney representing your spouse or other family member will get paid from your estate, and so will the guardian ad litem.  You can avoid all of this time and cost by appointing a power of attorney prior to your incapacity.

Planning Ahead is Critical

Once you are disabled, it is too late to put a power of attorney in place.  Even if you already have a power of attorney, it is good to have it reviewed every few years in order to ensure it meets your goals.  As with other aspects of your estate plan, with proper planning, you can ensure a good quality of life for you and your family.

Written by Brian G. Quinn, Attorney with Quinn Estate & Elder Law