Brochure Powers of Attorney Generally

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A brief description of Powers of Attorney

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Brochure Powers of Attorney Generally

  1. 1. POWERS OF ATTORNEY A general explanation “Giving someone authority to act on your behalf is not the same as giving up control.” A BRIEF ARTICLE BY PAUL SHIPP, MANAGING ATTORNEY OF THE FLINT HILLS OFFICES OF KANSAS LEGAL SERVICES
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  3. 3. 3 A power of attorney (POA) is legal document giving written authorization to another person to represent or to act on another's behalf in almost any affair, whether it is a business matter, financial issue, health related item or legal matter. The person authorizing the other to act is known as the principal, the grantor, or the donor of the power, and the one authorized to act is known as the agent, the donee, or the attorney-in-fact. Granting someone the power to act on your behalf is not authorization to have another person dictate your life’s decisions. The Principal The principal is the individual granting to another person the power to act on their behalf and to participate in some affair, or conduct a business matter, or make some financial decision, or decide on some type of health related item. The person making the power of attorney (the principal) controls the type of power granted to the other party (the attorney-in-fact). The amount of power the principal gives to an attorney-in-fact is controlled by the legal document creating the power. The Attorney-in-fact The term attorney-in-fact is used to describe the person granted the power to act on another's behalf. An 'attorney-in-fact' is not an 'attorney-at-law.' An attorney-at-law in the United States is a lawyer; someone licensed to practice law in a particular jurisdiction or state. Some powers of attorney make reference to an 'agent,’ another word for ‘attorney-in-fact.’ Whether the term agent or attorney-in-fact is used is not important. The most important thing for the person giving authority to another is that they understand that they are giving to another person the power/authority to act on their behalf in a particular situation. Again, how much power is granted depends on what is written in the legal document granting the power. The person named as the attorney-in-fact is a fiduciary for the principal. The law requires the attorney-in-fact to be completely honest with and loyal to the principal in their dealings. The law also requires that the attorney-in-fact act in the best interest of the principal. The attorney-in-fact is not supposed to use the power granted to them to act in their own self interest. In other words, if an attorney-in- fact grants someone the power to write checks out of their account it would be wrong for the attorney-in-fact to pay their own personal bills with funds from the account owned by the principal. Capacity of the Principal It is important to note that if someone is already incapacitated, it is not possible for that person to sign and/or execute a valid power of attorney. A person must have capacity in order to sign legal documents, including a power of attorney. If a
  4. 4. 4 person does not have the capacity to execute a power of attorney (and does not already have a durable power of attorney in place), often the only way for another party to act on their behalf is to have a court impose a conservatorship. It is possible that a person might lose capacity for a time, but later regain it. For example, someone may have named a power of attorney for healthcare decisions, and made the power durable, and then have a heart attack and lose capacity for a day or two, but after recovering from the heart attack the individual (the Principal) could regain capacity and then change their power of attorney and name someone else. Revocability Any power of attorney that is made is revocable at any time, so long as the maker of the power of attorney has legal capacity to revoke it. This is important because sometimes the principal may want to, or need to change their power of attorney. A power of attorney cannot become irrevocable unless it is made durable, and the maker of the power of attorney becomes permanently incapacitated. Durability At any time after the power of attorney has been created, the document will probably stop being effective and enforceable unless the principal specifically states in that power of attorney that he/she wishes the document to remain in effect even if he/she becomes incapacitated. This type of power of attorney, that stays in effect even after the grantor becomes incapacitated, is commonly referred to as a durable power of attorney. If the durability aspect of the document comes into play then it is possible that the power of attorney becomes essentially irrevocable. How long does a power of attorney last? A power of attorney may be special or limited to one or more specified acts or types of acts. A power of attorney can be general or broad. A power of attorney can last for a particular transaction or event. It can be made to last for a day, a week or have no expiration date at all. The document that grants a power needs to specifically state when the power is effective and when and if it expires. If the power of attorney is made to be durable (to last beyond incapacity) the document needs to say so. Under the common law, a power of attorney becomes ineffective/useless if its maker becomes "incapacitated," meaning unable to grant such a power, because of physical injury or mental illness, and this is why the maker of the power must specify that the power of attorney will continue to be effective even if the maker becomes incapacitated. All powers of attorney end, or lose legal effectiveness, on the date of the death of the maker.
  5. 5. 5 Types of Powers of Attorney Generally there are two main types of powers of attorney. There are powers of attorney granted to manage health care decisions and there are powers of attorney granted to manage financial affairs. The Health care power of attorney A Power of Attorney for Health Care Decisions is sometimes called the Healthcare Power of Attorney. It is a signed and witnessed (or notarized) legal document that allows a person to designate an agent to make health care decisions for him/her during a period of disability or incapacity. The person who holds the power of attorney is called the healthcare agent. The terms of the document may be fairly general or very specific. The powers granted usually include the power to make decisions regarding hospitalization, choice of physicians and long term care (nursing home). The document also may include the power to refuse or withdraw consent for the use of life sustaining procedures, even when the person is in a coma or persistent vegetative state, and for organ donation and autopsy. This document may be used to nominate a guardian for personal affairs and/or a conservator for financial matters, in the event one need to be appointed by a court. The person creating a Power of Attorney for Health Care must be an adult (at least 18 years old) and competent when the document is signed. A person is generally assumed to be competent. The document must be witnessed, and witnesses may not be relatives, or have a financial interest in the person's medical care or estate. In the alternative the power of attorney can be notarized. The Healthcare Power of Attorney may be effective immediately, or may be made effective only when the person lacks the capacity (as determined by a physician) to make or communicate decisions. All powers of attorney for healthcare decisions should be made durable, or have language in it that states that the power is not going be invalidated upon the maker's incapacity. The person creating the Durable Power of Attorney for Health Care decisions can name anyone to be their agent; usually a family member is named as the healthcare agent, but that does not have to be case. The agent may not be an employee, owner, director or officer of a facility such as a hospital or nursing home where the person is receiving treatment unless that person is a relative, or is married to them.
  6. 6. 6 The Durable Power of Attorney for Healthcare Decisions must be in writing, dated and signed in the presence of two witnesses at least 18 years of age, neither of whom is the agent named in the document. The witnesses may not be related by blood, marriage or adoption, entitled to any portion of the estate, or directly financially responsible for your health care. In the alternative to witnesses, the Durable Power of Attorney for Healthcare Decisions can be acknowledged before a notary public. The healthcare agent has authority to make decisions for the patient when the patient is no longer able to make or communicate decisions to their health care providers. The agent has a duty to make decisions on behalf of the patient, and is required to follow the wishes of the patient. The decisions made by the healthcare agent have the same force and effect as if they were made by the patient. The agent may not use the Power of Attorney to revoke or invalidate a previously existing Living Will Declaration. The healthcare agent does not have the authority to dictate to the patient what medical procedures he/she will have or not have. The healthcare agent does not have the authority to dictate that the patient must go into a nursing home. As long as the patient has the capacity to communicate with their health care provider the patient can control what medical procedures they have. Most abuses of the Power of Attorney for Healthcare occur when the medical staff treat the patient as if they are not there and pass all medical decisions through the Power of Attorney for Healthcare and fail to consult the patient directly when the patient has the ability to communicate decisions. The POA for healthcare should be an advocate who allows the patient to make all the decisions when the patient is able to do so. In cases where the patient is mentally ill, has dementia, or is suffering in the advanced stages of Alzheimer’s the issue of who makes the decision can be difficult and confusing and when difficulty arises the best course may be to have court intervention to be certain the patient’s rights are protected. It is the duty of the attending physician to determine when the patient no longer has the capacity to make or communicate decisions. This can get sketchy for the medical staff. If the patient decides to revoke or change a Healthcare Power of Attorney the patient should do it in writing, and have the revocation witnessed or notarized. The patient should also destroy all copies of any previous Healthcare Power of Attorney and inform any attending physician and his/her healthcare agent.
  7. 7. 7 A physician cannot make a legal determination as to whether a revocation is effective. The physician should assume that any revocation received is effective. If the previous health care agent disagrees with the revocation and believes the patient lacked the capacity to revoke the power of attorney then he/she will have to seek a court order to continue to control the health care of the patient. The Power of Attorney to Manage Financial Affairs When an individual creates a power of attorney to manage financial affairs they are giving another person the power to conduct their personal business. A person who has given another the power of attorney to conduct financial affairs can authorize that person to write checks from their bank account(s). The power of attorney can be given the ability to do things like negotiate the purchase or sale of real estate, make application for public benefits, hire an attorney, lease an apartment, create trust agreements, etc. The benefit of granting someone this kind of authority can make it easier to get bills paid. Another benefit is the protections that are afforded the principal (the person giving someone else the power). An attorney-in-fact does not actually own the property of the principal. It is impermissible under the law for the attorney-in- fact to comingle his/her funds with principal’s funds. The attorney-in-fact has a fiduciary duty to act in the best interest of the person they are helping. The law does not permit the attorney-in-fact to take funds from the principal. Unfortunately, the power of attorney for financial decisions is an avenue that is often used as a means to abuse individuals who are vulnerable. Giving someone complete access to all of your financial resources is a risky endeavor. When this is done you are increasing your risk of being taken advantage of by another person. Normally it is beneficial to manage your own affairs for as long as you can before that responsibility is delegated to someone else. Granting someone the power of attorney for financial affairs is not giving up control of your finances. Your POA for financial matters should not be dictating how your money will be spent. Choosing the Right Person for Power of Attorney Be careful when choosing someone to serve as your power of attorney in any capacity. You must be able to trust the person. Choose someone who has your best interests at heart. Avoid naming someone as your power of attorney who has
  8. 8. 8 poorly dealt with their own serious issues in the past, and steer clear of anyone who has a personal grudge against any of your family members. Do not choose someone who would impose their moral or religious values on you. Choose someone who knows you and will do for you what you would have done, and not do what they think you should have done. You should discuss your current and future health and financial issues with the person you choose before you sign any document granting a power of attorney. If you are not comfortable sharing your health or financial information with the person you have chosen, then pick someone else. Do not just create a power of attorney for the sake of creating one; doing so could set you up to be taken advantage of. Take your time in choosing the best person to act as your agent, and enjoy the peace of mind that comes from a well-thought-out decision.
  9. 9. 9 QUESTIONNAIRE FOR DURABLE POWER OF ATTORNEY Full Legal Name: PLEASE PRINT Current address: Actual physical address and mailing address/City/State and Zip County of Residence: Telephone Number: Marital Status: If married, spouse’s name: Please list the following information concerning the person to be given the power of attorney (called the agent/attorney in fact): *****FINANCIAL DECISIONS***** Name of agent/attorney in fact: PLEASE PRINT Address: Actual physical address and mailing address/City/State and Zip Telephone number(s): Relationship to you: How often do you see the proposed agent/attorney in fact (ex. every day, once each week, or twice each month, etc.)? Should the above agent/attorney in fact be unable to continue as your agent/attorney in fact, is there someone else you would want to serve as your alternate agent/attorney in fact or do you want the power of attorney revoked? Name of alternate agent/attorney in fact: PLEASE PRINT Address: Actual physical address and mailing address/City/State and Zip Telephone number(s): Relationship to you: How often do you see the proposed alternate agent/attorney in fact (ex. every day, once each week, or twice each month, etc.)? REVOKE POWER OF ATTORNEY—Please circle if this is your wish.
  10. 10. 10 *****HEALTHCARE DECISIONS***** (If you wish to use the same person for both financial decisions and healthcare, please write “SAME.”) Name of agent/attorney in fact: PLEASE PRINT Address: Actual physical address and mailing address/City/State and Zip Telephone number(s): Relationship to you: How often do you see the proposed agent/attorney in fact (ex. every day, once each week, or twice each month, etc.)? Should the above agent/attorney in fact be unable to continue as your agent/attorney in fact, is there someone else you would want to serve as your alternate agent/attorney in fact or do you want the power of attorney revoked? Name of alternate agent/attorney in fact: PLEASE PRINT Address: Actual physical address and mailing address/City/State and Zip Telephone number(s): Relationship to you: How often do you see the proposed alternate agent/attorney in fact (ex. every day, once each week, or twice each month, etc.)? REVOKE POWER OF ATTORNEY—Please circle if this is your wish. *****ADDITIONAL INSTRUCTIONS*****  Do you want this power of attorney to take effect immediately or only in the event that you become disabled?  Immediately  Only in the event that I am disabled
  11. 11. 11  Do you feel there is a need for the agent/attorney in fact or alternate agent/attorney in fact to make an annual accounting of how your funds are spent? YES NO If yes, who else do you want the agent/attorney in fact or alternate agent/attorney in fact to provide an annual accounting to beside yourself, if any? Name and Address: Relationship to you:  Mark any optional power(s) that you would like give to your agent/attorney in fact. You should read them carefully, as the omission of these can limit the powers of the agent/attorney in fact in the document: □ Revoke gifts (this means that the agent doesn’t have to accept a gift of property that would disqualify you from receiving some sort of needed benefit such as Medicaid, etc). □ Delegate the agent’s authority to others □ Designate a substitute for the agent’s powers □ Authorize autopsy, based on the agent’s judgment □ Make a donation of your body for medical or other purposes □ Use your funds to pay for your funeral or burial □ Serve as guardian and/or conservator if court proceedings are required (recommended) □ Make decision about a health care facility, even if against medical advice □ Make or modify trust agreements. If checked, name of Trust currently in place: □ Sell or mortgage your home for your benefit. If checked, please answer below: Street address, city, state and zip code In addition, please provide our office with a copy of the most recent deed to your property. (Tax assessments do not contain complete legal descriptions so please do not send those.)
  12. 12. 12  IF MARRIED: Do you want your agent/attorney in fact or alternate agent/attorney in fact to be able to alienate the homestead without the joint consent of your spouse including the authority to sell, transfer, and convey the homestead? (If you want the agent/attorney in fact to be able to make a decision to sell your home, even without your spouse’s consent, your spouse will have to sign the Durable Power of Attorney document. The reason you may wish to grant that power to the agent/attorney in fact, would include: (a). Your spouse does not have or wish to have a Durable Power of Attorney or has a different agent/attorney in fact, or (b). Your spouse may be incapacitated and be unable to understand the financial or legal advantage of such sale. YES NO (If yes, your spouse will have to sign the Durable Power of Attorney consenting to this.)  A Living Will is a document which lets you decided whether or not you want your doctors to take extra measures to keep you alive after you become terminally ill or incapacitated. If you execute a Living Will, the instructions that you have made will automatically be followed by your doctors and will not be the burden of your agent/attorney-in-fact. Do you want our office to prepare a Living Will for you? YES NO  Please list any physical or mental disabilities which affect your ability to handle some or all of your affairs at the current time.  List all sources of income (ex. Social Security, VA benefits, other pension, unemployment, alimony, or wage if working). Source Monthly Amount  List all assets (ex. own home, bank accounts, car(s), life insurance). Please note if each assets is held individually or jointly: Asset Value Titled Is this questionnaire filled out in your handwriting? YES or NO If no, who filled it out for you and what is their relationship to you?
  13. 13. 13 EXAMPLE POWER OF ATTORNEY FOR A LIMITED PURPOSE KNOW ALL PERSONS BY THESE PRESENTS that I, __________________________, Social Security number ________-______-________, do hereby appoint __________________, Social Security number ________-______-________, to act as my true and lawful attorney-in-fact for the limited purpose of: My attorney-in-fact shall have the power to do the acts hereinabove stated, and to make, sign, endorse, acknowledge, deliver and possess all documents necessary and proper to exercise the rights and powers specifically granted herein. The rights, powers and authority granted herein shall commence and be in effect upon my signature, and shall expire on the _______ day _______________________, 20_____, Signed and dated this ______ day of __________________20_____. ________________________ Principal STATE OF KANSAS ) ) ss: _____________COUNTY ) BE IT REMEMBERED that on this _____ day of ________________, 20____, before the undersigned, a notary public in and for the county and state aforesaid, came ______________________________, who is personally known to me to be the same person who executed the within instrument of writing and such person duly acknowledged the execution of the same for the purposes and consideration therein expressed. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written. Notary Public My appointment expires:
  14. 14. 14 EXAMPLE DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS KNOW ALL PERSONS BY THESE PRESENTS that I, _____________________, of _____________________, Kansas, designate and appoint, _____________________, of, _____________________, Kansas, to be my agent for health care decisions and to make medical decisions on my behalf if I am suffering from disability or incapacity, and I am unable to do so: FIRST: Consent, refuse consent, or withdraw consent to any care, treatment, service, or procedure to maintain, diagnose or treat a physical or mental condition, and to make decisions about organ donation, autopsy, and disposition of the body. SECOND: Make all necessary arrangements at any hospital, psychiatric hospital or psychiatric treatment facility, hospice, nursing home, or similar institution; to employ or discharge health-care personnel to include physicians, psychiatrists, psychologists, dentists, nurses, therapists, or any other person who is licensed, certified or otherwise authorized or permitted by the laws of this state to administer health care as the agent shall deem necessary for my physical, mental, and emotional well being. THIRD: Request, receive and review any information, verbal or written, regarding my personal affairs or physical or mental health including medical and hospital records and to execute any releases of other documents that may be required in order to obtain such information. The powers of the agent herein shall be limited to the extent set out in writing in this Durable Power of Attorney for Health-Care Decisions and shall not include the power to revoke or invalidate any previously existing declaration made in accordance with the Natural Death Act. If my attorney-in fact is no longer able or willing to serve, I appoint, ________________, of ____________________ to be my substitute. The rights, powers, and authority granted herein to the attorney-in-fact shall commence and be in effect upon my signature. This Durable Power of Attorney shall not be affected by subsequent disability or incapacity of the principal. The rights, powers, and authority shall remain in full force until written revocation by me or until my death. DEFINITION OF DISABILITY OR INCAPACITY As used herein, a person (including myself) shall be considered under a disability or incapacity if the person’s ability to receive and evaluate information effectively or to communicate decisions, or both, is impaired to such an extent that, in the case of myself, I lack the capacity to manage my personal financial resources, as determined by the certification of my treating physician. All persons shall be fully protected in relying upon any of the foregoing- referenced certification.
  15. 15. 15 I hereby waive, and any person agreeing to serve as attorney-in-fact hereunder shall be deemed to have waived, any physician-client privilege for this limited purpose and authorize the disclosure of such certification by the physician for use by that person as necessary hereunder. All health care providers are absolved and released of any liability for providing health information to my attorney-in-fact. For purposes of the privacy rule of the United States Department of Health and Human Services promulgated pursuant to the Health Insurance Portability & Accountability Act of 1996 found at 45 C.F.R. Part 162 et. seq. (“HIPAA”), for purposes of determining whether I am incapacitated or disabled, requests for disclosure of health information made by my attorney-in-fact (regardless of whether it has previously been determined that I am incapacitated or disabled) shall be deemed to be requests for disclosure made by me and disclosures of health information, including a certification as to whether or not I am under a disability or incapacity, to my attorney-in-fact shall be deemed to be disclosure made to me. This Durable Power of Attorney for Health-Care Decisions shall be revoked by an instrument in writing executed, witnessed, or acknowledged in the same manner as required herein. Any Durable Power of Attorney for Health-Care Decisions I have previously made is hereby revoked. Signed and dated this _____ day of ___________________, 20____. The Patient STATE OF KANSAS ) ) ss: COUNTY OF ____________ ) BE IT REMEMBERED, that on this ______ day of _____________, 20____, before me, the undersigned, a Notary Public in and for the County and State aforesaid came _____________________, who is personally known to me to be the same person who executed the within instrument entitled Health Care Durable Power of Attorney, and such person duly acknowledged the execution of the same. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last above written. ____________________________ Notary Public My Commission Expires: the ____ day of ________________, 20__.
  16. 16. 16 EXAMPLE REVOCATION OF POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: THAT I, ___________________________, of the City of __________________, Kansas, hereby revoke the Power of Attorney granted by me on the ____ day of __________________, 20___ to _______________________. The said Power of Attorney is no longer valid and the said person is no longer empowered to act as my agent or attorney in fact in any capacity. Each and every power granted by me to the said person is hereafter revoked. DATED this_______ day of __________________, 20______. _____________________, grantor ACKNOWLEDGMENT STATE OF KANSAS ) ) ss: COUNTY OF ________ ) The foregoing Revocation was acknowledged before me this ______ day of __________________, 20___, by _______________________________. Notary Public My Appointment Expires:
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  18. 18. 18 The information in this booklet is provided as a public service by Kansas Legal Services, It was compiled by Paul Shipp (Managing Attorney in the Flint Hills Offices of Kansas Legal Services). It was written to provide you with helpful information regarding the subject matters covered. This publication must not be used as a substitute for the advice of an attorney. If you require legal advice then you should seek out a qualified, competent attorney. Distributed by the Flint Hills Offices of Kansas Legal Services, 104 South Fourth Street, Manhattan, KS 66502; Phone: 785-537-2943. For assistance with Elder Law Questions, Call: 1-888-353-5337 If you need any of the articles contained within this brochure in larger print, or alternative media, so that you can review them please feel free to contact the Flint Hills Offices of Kansas Legal Services directly. Copyright © 2012 By Kansas Legal Services This publication may be reproduced and distributed provided it is done at no cost to the recipient. Kansas Legal Services offers Free and Reduced Cost Legal Services. If you need help with a legal problem you may want to contact us, we serve the entire state of Kansas: 800-723-6953 (Marilyn Harp, Executive Director)

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