Powers of Attorney: What Is It All About?
Updated: Jan 28, 2019
So we here at Senior Care Connect are not lawyers, however, we do know from first-hand experience the importance of completing power of attorney documents(POAs), as well as the crisis and stress that can arise for families that have not put POAs into place.
What is a Power of Attorney?
POAs are legal documents which allow someone(s) (the attorney) to act or make decisions on your behalf , if there ever came a time in which you were deemed incapable to make certain decisions.
Types of POAs:
Power of Attorney documents are composed to determine decision making for two main areas of one’s life.
Personal Care (such as your health care decisions)
Property (assets, finances,etc)
A separate document is made for each, so you would have to make a POA-personal care, and another document is completed for POA-property. Within the POA, the person(s) you name in the document is referred to as your attorney.
Within these documents there can be more than one individual listed as your attorney.
Having Multiple Attorneys:
In making a POA, you have the option to list one or more person(s) as your primary attorney. In addition to this, one can also list an alternative(s) attorney, in the case your primary attorney is unable or unwilling to fulfill their role.
Example: Mr. John Smith has named his wife, Mrs. Jane Smith, as his attorney for personal care. In addition, Mr. Smith has listed his son Tom Smith as an alternative attorney, in which Tom can only take on the role of decision maker if Mrs. Jane Smith is unable or unwilling to perform her duties. Such an arrangement provides somewhat of a “back up” plan in the case that perhaps Mrs. Jane Smith passes away prior to her spouse (Mr. John Smith), falls ill herself, or any other scenario that would not allow her to act in her role. If such circumstances arose, Mr. John Smith would still have someone he trusts who is legally appointed and could be available to act on his behalf.
If naming more than one person as your primary attorney, you have the option to determine how these individuals are able to act within their role, relative to one another. Two of the primary options available are in listing your attorneys as: a) Jointly or b) Jointly and Severally (1)
Jointly: If you complete a POA document which states that your attorneys are to act jointly , this means that all attorneys listed have to make the given decisions together and need to unanimously be in agreement prior to proceeding with the decision. One attorney cannot not act separately of the others to make a decision, nor does one of the attorneys trump the decision making power of any of the other attorneys.
Example: Mr. Brown has listed all four of his daughters jointly as POA for personal care, and is currently unable to make his own health care decisions. As such, prior to moving forward with any treatment recommendations from a physician, all four daughters would need to contacted and be in agreement with the proposed treatment plan.
Jointly and Severally: If you complete a POA document which states your attorneys are able to act jointly and severally, it means that each attorney has the power to act or make decisions independently of the other(s). The attorneys can act jointly together in making the decision, but also have the option to act separately in the case one attorney may be more available and accessible to act on your behalf.
Example: Mr. Green has named both his sons, Mark and Maurice, as his POA for personal care. Mark lives overseas, and Maurice lives in the same city as his father. Mr. Green is admitted to hospital and is unable to make his own care decisions. Physicians need to proceed with a treatment plan, as soon as possible, but require consent for the treatment. As Maurice is available in town and the proposed treatment is time sensitive, Maurice is able to sign off on the consent to proceed, as Mr. Green listed his attorneys as jointly and severally, allowing Maurice to make a decision without having to await gaining access to Mark overseas.
Points to Ponder:
It is best to consult with a lawyer, as well as your family, friends or others you plan to make attorneys, to determine which option best suits your situation. In making your decision, however, below are just a few points to ponder:
For POAs which list attorneys as jointly, this can be great in the case if it your wish to ensure that multiple parties you trust are able to consult and come to an unanimous decision on your behalf. However, this may cause complications as well. If your attorneys are not in agreement with one another, this can cause arguing amongst them, and at times delay important decisions from being made, as none of the attorneys are able to act irrespective of the others.
For POAs which list attorneys as jointly and severally, this can be great, as it can at times be challenging to contact all attorneys or get them together to make every decision, especially if one or more reside abroad. With jointly and severally, one attorney who may be the most easily accessed can update and keep in contact with others as need be, but can separately be the one to sign on the dotted line. (Imagine the challenge of getting 3 people from 3 different countries, in 3 different time zones, to be available to sign off on a single document). A potential downside,however, could be that (technically)one of the attorneys could go ahead and make all decisions, without the other attorney(s) ever knowing.
For POA personal care, do keep in mind, that if you are listed as an attorney for personal care, that your decision making power on your loved one’s behalf, comes into play only once they have been deemed incapable of making a particular decision. Being listed as an attorney for personal care does not give one the right to make personal/health care decision on behalf of their loved one, if they are still capable of making such decisions. Even if you feel your loved one is not making the most appropriate choice, if they still have the capacity to make a particular decision(even if a bad choice), they still have this decision making right, not their listed attorneys.
For POA for property, do keep in mind that generally, unless a specific clause is added, this document (unlike POA personal care), comes into effect the minute it is signed. What this means is that as soon as it is completed your attorney technically can act on your assets or finances by presenting the POA document. This is an important note to keep in mind, so that you ensure you choose someone you really trust to be your attorney(s).
For POA for property, also keep in mind that putting in particular clauses, in some cases can be of benefit, while in other cases, not so beneficial. Clauses, such as needing to be deemed by a physician to be incapable of managing your property or finances, can cause complications and delays. Physicians generally do not and will not make comment on one’s financial capacity (as they are health care professionals). Thus with such a clause you could find yourself in a dilemma, in which your loved one may be in need of assistance managing finances, but yet you cannot take on the role, until the listed clause is fulfilled.
Completing Power of Attorney documents is an important part of estate planning. It can very well be in your best interest to explore completing such documents, in order to allow for you to choose who you would want acting on your behalf, in the case you were no longer able to make particular decisions.
For more detailed information regarding power of attorney documents, please view links below:
Personal Care Property/Finances
1) A majority clause power of attorney, can also be an option ( i.e. Vote of 2 out of 3 can make the decision); Seek legal counsel to further explore
*This article is for general information purposes alone, and is based on numerous experiences in dealing with issues related to POAs and seniors/family members. It is not meant to replace appropriate legal counsel regarding such matters. In order to make the most well informed and appropriate decision regarding composing Power of Attorney documents, please consult a lawyer to seek appropriate legal counsel.