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Planning ahead-the power of attorney

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Joseph Roy, a thin, dapper English ex-pat with a love for everything with a motor was the power of attorney for a long-time friend, May Rogers.  May’s mind was still sharp as a tack but because of osteoporosis, her body could no longer safely make trips outside her home.  Though they argued over everything from food to politics, it was Joseph that took May to emergency when she got the flu.  It was Joseph that made sure May ate and it was Joseph that did all of May’s banking.  Then two years ago, Joseph was diagnosed with bone cancer and a year later he died.  In the interim you would have thought that May would have found someone else for her power of attorney but Joseph was so determined that he was going to kick cancer to the curb, the two of them didn’t plan beyond the day-to-day march to his recovery.

Joseph’s death left May without someone to do her banking, shopping etc. but it left her something else.  It left a grief-stricken May at risk to a predator.  While May was still torn up about Joseph’s death, the everyday world kept going on.  Social Security checks still came, community property needed to be disposed of and bills didn’t stop so May who by then had moved into an adult family home owned by the daughter of a long-time family friend signed another power of attorney.  This time she picked the owner of the adult family home that she lived in.

May’s story got pretty scary for a while.  Older individuals are vulnerable to fraud because they tend to be more trusting of others.  A power of attorney gives another person a lot of power—power over finances and legal power such as the power to sign legal documents on the principal’s behalf.  May’s new attorney-in-fact made banking decisions that worried her but more importantly, they worried the bank she did business with, and so for May, this story ends with May losing the proceeds from a minor real estate sale but not all of her retirement funds like she worried might happen, nor did she get placed in a mental institution like her attorney-in-fact threatened her with.  What she did lose was that belief in another person being willing to help her out of the goodness of their heart.

May was lucky but many people are not.  A power of attorney is a dangerous document in the hands of the wrong person, which is why it’s absolutely imperative that you spend some time thinking about who you wish to act on your behalf in legal and financial matters whether because you are out of town or because you are no longer able to care for yourself.  A power of attorney, for instance, can be drawn up so that it doesn’t become effective unless you become incapacitated for some reason.

Part of growing older should involve having lengthy and profound discussions about what Americans often see as uncomfortable subjects, such as death and dying, with your children and others that you love.  There are few things that are absolutely certain in life, but one of them is death.  A power of attorney is not an “if,” it’s a “when” as in “when you get old and physically and/or mentally incapacitated.”  If you don’t have a power of attorney and you become incapacitated, a court will appoint someone to oversee your care and may not take into account who you would have preferred.  You have to draw up a power of attorney when you are still mentally on top of things.  You want to draw it up when you’ve had discussions with the person or people you’ve selected so they know what you want for yourself financially and medically.

Most lawyers will create a power of attorney as part of an estate plan.  There isn’t any need to release the power of attorney until it is needed.  If the power of attorney is needed but then you are able to take back control of your life, take it back immediately.  Click here to find another argument for why you need a power of attorney.

Here’s a previous story on how a power of attorney was used incorrectly.

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