Powers of Attorney.

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By on April 3, 2010 5:46 pm Leave your thoughts

While awaiting our WV Mountaineers to take on Duke in the semi-finals of the final four, I think I will write about a very sexy subject…………NOT! Many people seem to have little clarity on the purposes of powers of attorney.

Military service members know them because they need their spouse or family to be able to move their furniture, pay their bills, and other legal matters while they are overseas. We will discuss three types of powers of attorney:

1. Special Powers of Attorney;

2. Durable General Powers of Attorney; and

3. Medical Powers of Attorney; and

4. Just touching upon something called a “living will” which isn’t a traditional “will” at all.

The Special Power of Attorney is designed for a particular and limited purpose. Signing the papers to allow a movement of household goods, or to purchase insurance, or to pay certain bills, are good examples. The key is for the document to specify, with particularity, the powers conveyed.

The Durable General Power of Attorney is a powerful, nearly all encompassing, document. It cannot convey the power to swear to the truth of an affidavit, but the “attorney in fact” can sign virtually any other document that the person assigning the power of attorney can. I stress to my client that she must pick this person carefully, since, “He can withdraw all your money from the bank and send you a postcard from the Bahamas.” Key to a general power of attorney is the word “durable”.  If the signator becomes incapaciated, e.g., by a stroke or medically induced coma, the attorney in fact still can act on the signator’s behalf. Thus, his power is “durable. Many people never get a general power of attorney, relying primarily on a joint checking account, perhaps with an elderly parent, to conduct that person’s business. A durable general power of attorney can save hundreds of dollars and weeks of delay by negating the need for appointment of a “guardian/conservator” for the elderly person who becomes mentally “incompetent”.

The Medical Power of Attorney permits a designated person to make key medical decisions BUT ONLY IF the signator is unable, because of dementia or lack of consciousness, to make the decision herself. Thus, it is the reverse of a General or Special P.O.A. which convey the immediate power to act.

I prefer the Medical P.O.A. to the “Living Will”, which is an “advance directive” pushed hard by medical insurance companies and hospitals to “pull the plug” rather than use “heroic actions” or “extraordinary means” to keep the living will’s author alive. I prefer to trust a loved one who can confer with the doctor and apply my goals and values to such a decision. Electric paddles and intravenous needles sound terrible, but if they offer the possibility of returning to some level of quality of life, I hope my attorney in fact makes a good decision whether to use them. Binding the doctors’ hands ahead of time doesn’t make sense to me, so I do very few “living wills.”

These documents, along with a current “Last Will and Testament”, and where appropriate, “Inter Vivos Trust” are part of a plan for the orderly handling of your legal affairs. They aren’t “sexy” but they can be critical, ESPECIALLY in a contentious family with LOTS of “know it alls”. That is a good subject for another day. Go Mountaineers!

This post was written by Burton Hunter

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