The Necessity of Powers of Attorney Documents

by Nazneen H. Syed, J.D., LL.M

The importance of Powers of Attorney documents is often underestimated.  It is not enough to know who you want to take care of your financial and health care needs should the situation arise.  It is also not enough for you to simply tell the person who you are choosing what your wishes are.  It is important to memorialize these wishes in writing.  A Financial Power of Attorney document states the name of the individual you are nominating, who will be your agent, to take care of your financial affairs should become unable to do so.  It outlines all of the powers that are given to your agent as well.  A Health Care Power of Attorney document with a HIPAA waiver, is a similar document, but relates to your health care needs.  This document states the name of the person you have nominated to be your patient advocate and outlines the amount of power they have to make health care decisions on your behalf.  For example, you may decide when life support should be stopped, who decides when doctors are disagreeing, and how disputes among family members regarding your health care decisions should be decided.  A HIPAA waiver is necessary as the waiver gives medical professionals the ability to share your private medical information with your patient advocate. Without the HIPAA waiver, your patient advocate has a limited ability to speak to doctors, obtain health care information, make informed decisions, and follow your wishes.

The alternative to the absence of a properly executed financial power of attorney document is the conservatorship.  A conservator is a probate court appointed individual who is given authority to be responsible for your financial affairs.  The conservator has a duty to report all financial matters to the court.  Often times the appointed conservator is someone who has filed a petition with the court asking to be appointed as your conservator.  You have an opportunity to oppose and/or contest whether you feel a conservator is necessary.  It is a lengthy, public, and costly process that is often an unpleasant experience for you and the individual trying to obtain such authority.

The alternative to the absence of a properly executed health care power of attorney document is guardianship.  A guardian is a court appointed individual who is given authority to be responsible for your personal and physical well-being.  A guardian is also appointed by the probate court.  Similar to a conservator, typically, the appointed guardian is an individual who has filed a petition with the court asking to be appointed as your guardian.  You have an opportunity to oppose and/or contest whether you feel a guardianship is necessary.  This process is also a lengthy, public, and costly process that is often unpleasant for you and the individual trying to obtain such authority.

Having both Powers of Attorney documents in place allows you the opportunity to determine who will make financial and health care decisions for you.  While you have the capacity to implement these documents, you have control of determining who will act for you, as opposed to having a court of law decide.  Further, these documents give you the opportunity to decide when these individuals get to act for you: at incapacity and/or inability to do so or immediately for convenience and ease.  For example, some individuals trust the person(s) they are nominating and opt to have their agent and/or patient advocate be able to make decisions immediately upon implementation of the documents. Others decide to only delegate such authority upon incapacity or inability to make such decisions, because doing otherwise would be to give up their independence.

Having these documents in place also saves time, money, and energy.  The professionals trying to assist you, for example banks and/or medical professional, as well as your care-takers and/or family members, will all appreciate your advanced planning in relation to your financial and health care needs. And finally, in the hopefully unlikely event that loved ones are disagreeing, for example on who should have control of your affairs, the powers of attorney documents can give guidance on how to resolve such disputes should they arise.

For resources on how to implement Powers of Attorney Documents, please contact your local Estate Planning and/or Elder Law Attorney. You can also find resources on these topics here.  If you have any questions, you can contact Elder Law of Michigan by calling toll free 1.866.400.9164. You may also contact the State Bar of Michigan to assist you in referring you to an attorney in your area.

Nazneen H. Syed is a member of the Elder Law of Michigan Board of Directors. She joined as a board member in December of 2013. As Vice President and Wealth Planner at PNC Wealth Management, Nazneen provides advice on estate and other wealth planning issues. She brings a high level of technical expertise in the area of estate, business, tax, and wealth planning.

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