Elisa (who handles all of our communications like newsletters, mail outs and web content) was on the playground the other day talking to some moms after school. They know what she does, so through the course of the conversation powers of attorney came up. (We’ve talked about them previously here and here.) Some good questions were raised, so today we wanted to address some of those questions:
Won’t my spouse automatically be able to make medical decisions if I’m in an accident?
No. Just because you’re married doesn’t mean your spouse has all the rights to deal with your care and medical choices. In emergency situations, a spouse might be able to act, but any ongoing medical situation will require more legal authority. That authority either needs to be through a power of attorney or else a court guardianship order. And that HIPAA medical release you may have signed at the doctor’s office will not allow you to make decisions, even if it allows you to get information. What you need is a healthcare power of attorney that allows you to BOTH get information AND make decisions for your spouse.
Can’t my spouse manage our finances without a power of attorney?
Not necessarily. A spouse can access joint bank accounts, but other types of assets may be a problem. For example, if a car is in your spouse’s name, you would not be able to transfer it if the spouse is disabled. What if you need to sell your house? Even though the house is jointly owned you will need BOTH spouses’ signatures on the deed to sell it. What if the spouse can’t sign? That’s when a power of attorney will allow you to sign for your spouse.
Why do I need a power of attorney for my college age child?
Once a child turns 18 and goes away to college, you can no longer make decisions for him or her. So what types of issues might arise that would require you have a POA for them to act on their behalf?
- Illness or accidents: again, if your child is over the age of 18 and is in an accident, just because you’re their parent does not entitle you to find out what’s happening medically. Imagine your child needs emergency surgery and is 8 hours from home. The doctors are not required, and in fact are prohibited, from speaking with you without your child’s approval.
- After a tragic accident, as the parent, you would not be able to help pay bills or deal with your child’s bank accounts without some legal authority like a power of attorney.
Does an attorney have to draft the POA?
No, an attorney is not legally required to do the form. And the forms are available other places. But if you work with us, we provide advice about HOW to fill out the form. We deal with these issues every single day. It’s ALL we do. Because of that, we think about all sides of an issue, what potential pitfalls might be and guide you through what’s best for your unique situation – that’s why I’m sometimes called a “Counselor-at-law.” I give valuable counsel that can prevent heartache and wasted money.
Can’t the person I named as executor in my will just do it?
No! An executor has NO authority to act on your behalf before your death. Just because they have been named as someone to make decisions AFTER your death does not mean that hospitals, doctors, banks and/or the courts will recognize them as such while you are still living. Your death changes the authority that people can use. Before you die, it’s the power of attorney. After you die, it’s the executor.
As always, we’re just a phone call away. If, after reading about POAs, you’ve decided it’s time to do something about this important issue, give us a call. We will talk with you about the specifics of your situation and what the best next step might be. Give us a call at 217-726-9200.