Power of Attorney and Health Care Directive
If you do not have minor children whereby you need to name a guardian for your children in the event of your death, a power of attorney and a health care directive are generally the two most important documents you need as part of your estate plan. This is because of the high probability you could lose capacity or competency.
A power of attorney allows the person(s) to whom you have chosen to act as your attorney-in-fact with the authority over your financial affairs, except as limited in your power of attorney. Contrary to popular belief, you cannot sign your spouse’s name for them, your child’s name, your friend’s name, etc. That is true whether you have a power of attorney naming you as your spouse’s, for example, attorney-in-fact or not. If you are the named attorney-in-fact for your spouse, as the attorney-in-fact under a properly executed power of attorney, you would sign Your First Name Your Last Name, as POA for Your Spouse’s First Name Your Spouse’s Last Name (you would use the exact names that are listed on the POA – so if the POA listed a middle initial, you would sign using the middle initial).
When you are in the role as an attorney-in-fact, you have a fiduciary obligation to act in the principal’s (the person making the POA) best interest. Therefore, if you want to purchase a car in the name of you and your spouse, and your spouse refuses to purchase the car, you cannot sign your spouse’s name even if you are named as the attorney-in-fact. If you do so, it is a breach of your fiduciary obligation, and it is a felony.
You also cannot continue to use the POA upon the principal’s death. A POA is void immediately upon the principal’s death. Continuing to use the POA after the principal’s death is a felony.
In choosing your attorney-in-facts (you should name more than one person as a successor), the person must be at a minimum 18 years of age. In addition, you should choose someone who is responsible, dependable, financially savvy, and makes good financial decision themselves.
On the other hand, a Health Care Directive (HCD) allows your health care agent to make medical decisions for you if you do not have the capacity or competency to make them yourself. In addition, your health care agent is the individual whom follows your wishes for end-of-life decisions, as well as after life decisions, such as cremation or burial. In contrast to a POA, a HCD continues on after your death. In choosing your health care agents (you should name more than one person as a successor), the person must be at a minimum 18 years of age. In addition, it should be someone who is responsible, and will follow your wishes.
Spangler and de Stefano, PLLP helps clients with POAs and HCDs.
The material contained herein is for informational purposes only, and is not intended to create or constitute an attorney-client relationship between Spangler and de Stefano, PLLP and the reader. The information contained herein is not offered as legal advice and should not be construed as legal advice.