August 15, 2011
A Power of Attorney for Personal Care delegates to your named attorney or attorneys the authority to make decisions regarding your care. Your attorney or attorneys can only exercise the authority under the Power of Attorney for Personal Care if one or more physicians determine that you are no longer capable of making such decisions for yourself.
A Power of Attorney for Property delegates to your named attorney or attorneys the authority, and the obligation, to make decisions regarding your property such as the payment of bills, depositing of money, selling of property or almost anything that you could do with your own property. Baring words to the contrary in a Power of Attorney, a Power of Attorney for Property is in force and can be used as soon as it is signed. A Power of Attorney for Property is often used in circumstances where the person granting the Power of Attorney for Property is no longer capable of managing his or her affairs. But it may also be used in other circumstances such as when you are not available or present to manage your financial affairs or simply wish to delegate management of your property.
So once you have the powers of attorney properly executed, assuming the function of attorney is not always straight forward. The donor of the power may no longer be capable of making appropriate decisions for herself but she may not realize this fact and insist on functioning as best she can by herself. For this reason the power of attorney document should provide for the attorney to cause the capacity of the donor to be tested and should provide that reasonable force may be applied to facilitate this test where the donor refuses to go through the process. If the capacity assessor’s report confirms the donor’s lack of capacity, that usually puts an end to the donor’s resistance to accept the services of the attorney.
The cost for the preparation of a Power of Attorney for Personal Care and Power of Attorney for Property are very reasonable. If the Powers are never used, then you have had the advantage of good health and the peace of mind that you were prepared for illness or injury. If either or both are called upon, the potential financial savings to your Estate and emotional and psychological strain to your friends and family far outweigh the cost of preparing the Powers of Attorney.