The key to power of attorney effectiveness is to have the legal document in place BEFORE you need it. The answer to, “When Should I Get a Power of Attorney?” is right now, because once you’re incapacitated (and, actually, need the power of attorney) it’s too late. You can’t sign a power of attorney if you’re incapacitated.
If you don’t have a power of attorney in place, your loved ones will have to petition the court to have someone appointed a conservator of your estate and of your person. A conservator of your estate pays your bills, files your taxes, and manages and invests your assets. A conservator of your person makes health care decisions on your behalf.
The conservatorship process is a loss of control, very expensive, time consuming, stressful, and public. The court may appoint someone as conservator that you would not appoint for yourself. Conservatorship is to be avoided. You can avoid conservatorship by having a financial (i.e. general durable power of attorney) and a medical power of attorney in place.
In addition, if you have minor children, you need a stand-by guardian authorization that works like a power of attorney. If you are incapacitated and cannot care for your children, the stand-by guardian will step into your shoes, making health care, general welfare, lifestyle, and educational decisions for your minor children.
Any guardian that you name in your will doesn’t have authority to act, without court intervention, because your will is only effective if you’re dead. If you’re alive, but incapacitated, your will has no affect.
If your powers of attorney are more than three to five years old or if you don’t have them, consult with a qualified estate planning attorney to get them in place now. The best time to get a power of attorney is before you need it.
Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.