Can I arrange for somebody else to handle my finances in the event that I become unable to do so?
A durable financial power of attorney is perhaps the best tool available for assigning your financial and legal decision-making authority to somebody else. By creating a financial power of attorney you effectively select an agent to act on your behalf in the event that you become unable to make decisions personally – or what is known as legally incapacitated. A financial power of attorney provides peace of mind not only to you but also to your loved ones. Designating an agent under a power of attorney allows your family to make important decisions for you without first seeking the court’s permission.
How do I establish a valid durable financial power of attorney?
Arizona law does not require you to use a specific power of attorney form, only that financial powers of attorney meet certain criteria. Free downloads of forms that meet these criteria are available on JacksonWhite’s Elder Law Website at www.arizonaseniorlaw.com. When establishing a durable financial power of attorney you must adhere to the following guidelines:
- You must understand what signing the financial power of attorney means for you and the agent.
- You must willingly sign the financial power of attorney.
- You must initial any paragraph which provides benefit to the agent.
- A notary and witness other than the agent, the agent’s spouse, or the agent’s children must sign the financial power of attorney.
When does a durable financial power of attorney take effect?
You have a wide degree of latitude when creating a power of attorney so it is important to seek assistance from a qualified estate planning lawyer. Some people wish for their power of attorney to take immediate effect so that their agent can act on their behalf if they are unavailable. These powers of attorney lose effect if you become incapacitated unless they are designated as durable. Other people do not want their power of attorney to take affect unless they become incapacitated. A springing durable power of attorney, which has no effect while you are able to make decisions for yourself, allows for this.
What authority does an agent have under a durable financial attorney?
An agent is the person whom you select to act on your behalf under a power of attorney. It is really up to you how much authority you wish to give to your agent. You may wish to grant broad legal authority to handle all of your affairs or you may wish to grant only very limited authority. You can even create several powers of attorney granting different agents various types of authority. With the assistance of an estate planning attorney you can grant an agent authority to do any of the following:
- Handle your taxes.
- Run your business.
- Buy and sell stocks or other investments.
- Collect government benefits.
- Manage your real estate.
- Pay your expenses from your accounts.
- Receive inheritances.
- Manage trusts.
- Manage your financial accounts.
Above all, your agent is required to act in your best interest. This includes keeping accurate records and maintaining boundaries between your property and his or her own. Agents who take unauthorized benefits are subject to civil and criminal charges.
How long does a durable power of attorney remain in effect?
Generally speaking, a durable power of attorney retains effectiveness unless and until you revoke it. You can revoke your durable financial power of attorney so long as you are not incapacitated. Except for on rare occasions, the only other time a durable financial attorney loses effectiveness is when the agent becomes unavailable, but this can be prevented by designating an alternate agent. It used to be that a durable power of attorney lost effectiveness upon the signer’s death. This has changed in recent years, however, such that you can grant your agent power to make funeral and burial arrangements after you are deceased.
Can I provide instruction as to the healthcare I prefer to receive later in life?
Living wills are used to provide your loved ones and medical practitioners with instruction as to the type of healthcare you wish for. Some people want life sustaining treatment for as long as possible, and a living will can ensure this follows. Others prefer to receive no life sustaining treatment whatever, and a living will can also ensure that this does not happen. If it becomes necessary for your family to make your healthcare decisions, a living will can remove the uncertainty that all too commonly plagues family members under these circumstances.
Can I arrange for somebody else to make my medical decisions in the event that I become unable to do so?
You should have two documents in place to ensure that somebody you trust makes your healthcare decisions should you become unable to do so: A healthcare power of attorney and a mental healthcare power of attorney. As the names suggest, the healthcare power of attorney assigns an agent to make your healthcare decisions in the event you become incapacitated and the mental healthcare power of attorney does the same regarding treatment at an inpatient mental health facility. Unless you have these important documents it may become necessary for your family to seek court approval before getting you the treatment you need.
What is required to create a valid healthcare or mental healthcare power of attorney?
A valid healthcare or mental healthcare power of attorney must:
- Clearly declare the principal’s intent to delegate the power to make healthcare decisions to a specific person;
- Be signed by a principal who is of sound mind and free from duress;
- Be witnessed by at least one adult who is not an agent, a relative or heir of the principal, or directly involved in providing health care to the principal.
Why is it important to have both a healthcare and mental healthcare power of attorney?
A healthcare power of attorney is critical because it provides your agent with the power to make your healthcare decisions in the event you become incapacitated. However, a healthcare power of attorney does not provide authority to give consent for inpatient mental health treatment. Because end of life issues such as Parkinson’s and Alzheimer’s disease oftentimes require such treatment, a mental healthcare power of attorney should not be overlooked. You can use the same agent under the mental healthcare and the healthcare power of attorney, or you can select two different agents.
When do healthcare powers of attorney become effective?
So long as you have capacity to make healthcare decisions personally your healthcare and mental healthcare powers of attorney will not take effect. These powers of attorney do not spring into effect unless and until you become incapacitated. This means that your designated agent cannot act on your behalf unless you become unable to understand your healthcare options or unable to clearly communicate your healthcare wishes. If there are questions as to your capacity to act for yourself, your family and your physician will work together to determine whether your powers of attorney should take effect.
How long will my healthcare power of attorney retain effectiveness?
Generally speaking, your healthcare and mental healthcare powers of attorney will remain effective until your death. You can, however, revoke your powers of attorney at any time so long as you are of sound mind to do so. Courts can also revoke healthcare powers of attorney, but it is extremely rare because judges are generally reluctant to get involved with healthcare issues.
