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Sep 30, 2016
Services: Wills and Estates

The Power Of Your Power Of Attorney

Choosing who to designate as your Power of Attorney both for Property and Health Care, also known as your POA/PP or POA/PC or Substitute Decision Maker (SDM), is a vital component of proper Estate Planning. Although the person designated as your Power of Attorney cannot change your Will, people often under-estimate the breadth of “Power” they have.  SDMs are able to do almost anything you could do for yourself with respect to the management of your financial affairs. All too often, medical and other practitioners and professionals hastily assume that our aging population are unable to make decisions for themselves or allow SDM’s to be indifferent to the wishes of their aging or ailing clients or patients.  However, the liberty of a person and their right to make their own decisions is as worthy of protection as their personal care and property.

Power of Attorney documents delegate the responsibility of managing your affairs, paying your bills, monitoring your investments, re-investing and making decisions respecting your physical and emotional healthcare when you no longer have the capacity to make the decisions yourself. In the wrong hands, this is a great deal of authority that can be misused. Day to day decisions can be cumbersome - for some, daunting.  Add to this the temptation to reward oneself; possibly driven by selfishness, feelings of entitlement or personal financial pressures and you have one of the most frequent causes of elder abuse.  If the authority you grant to your decision maker is placed in the wrong hands there can be little left of your assets when all is said and done.  Even worse, your quality of life can be radically and needlessly diminished when you are unable to speak for yourself if your decision maker does not understand or attempt to implement the expectations you expressed about your care. That is, of course, if you expressed them at all.

What Do I Recommend? 

Choose carefully, express clearly, don’t give up the liberty of making your own decisions prematurely and always incorporate accountability into the process.  Only the trustworthy and able should be your SDM.  If you cannot find a trustworthy family member to fulfill this important role, do not hesitate to look elsewhere. All too frequently, I am asked to intervene to stop the squandering of estate assets or provide better health care by having a new SDM appointed. People often assume a person cannot make or change their Power of Attorney, even if the authority is not exercised properly because of deteriorating capacity. This is not always the case. The capacity to appoint a Power of Attorney, either for Property or Personal Care, is not held to the same standard as actually having the capacity to manage your own affairs.  When in doubt, obtain an assessment from a professional assessor to determine your capacity.

What Should You Do?

If you are fortunate enough to have one clear, obvious option for a person to act as your SDM, choose that person. Be sure to also select a substitute if something should happen that prevents your chosen SDM from assuming their role.  Alternatively, you may select several people to decide together (jointly) or individually (jointly and severally).  Jointly and severally means either person can manage your financial and investment affairs, pay bills and make health care decisions which takes the pressure off one person acting alone.  Further, SDMs for health care need not be the same as SDMs for property. Acting as an SDM can be time consuming, so multiple Powers of Attorney can be advantageous not only because they are able to share the workload but also because it creates an inherit accountability to one another.  If you still have lingering concerns, you can also require that each person produce the accounts they are expected to maintain on an annual basis.

Additionally, if you fear your SDM may exercise their authority before you are actually unable to make decisions or that they won’t first seek your opinion; insist, as a condition set out in your Power of Attorney document, that an assessment be conducted before the SDM’s decision power can be exercised.  There are professional assessors with the credentials to do this and the costs are often nominal.  Don’t simply rely on the opinion of a medical practitioner or a lawyer about your capacity to decide for yourself.

What Is The Takeaway?

Advance Care Planning. Have “the discussion” with your SDMs, for both Property and Personal Care, while you are competent and able to do so.  Tell them your expectations.  It need not be in writing but can be if you wish to make it clearer. Some things to discuss may include where or how you wish to be cared for in your final days, whether you prefer to be maintained on life support or be allowed to die, how you want your money spent and much more. Request from others who may not be your Power of Attorney to advocate on your behalf when you are unable to fend for yourself or go to a proper authority if they suspect any kind of misuse of power.  Unfortunately, there have been many occasions when people have alerted me to this form of abuse.  Don’t let it happen to you.

If you're looking for assistance or advice to determine your Power of Attorney, contact our team At Smith Valeriote here! 

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Francis M. Valeriote

The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.