Why Creating a Power of Attorney is too Important to Trust to a DIY Document

Jan 23, 2013  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Powers of Attorney

If you are at least 18 years old and you have not created a durable power of attorney, not only are you placing your future in jeopardy, you may also be subjecting your loved ones to the costly and time consuming guardianship process. But creating a durable power of attorney needs to be done correctly; if not, it could lead to some big problems later on. The best way to avoid such problems is by hiring an attorney instead of relying upon a do-it-yourself kit or website form.

How big might these problems be? Your power of attorney may be contested by a family member who disagrees with the decision of the person holding the power, or by a financial institution. Selling your property may be delayed, resulting in increased cost and expense. In either of these situations litigation may be necessary, adding to the time and cost incurred from using an inappropriately drafted power of attorney.

And what of those situations where the incorrect power of attorney is used? Would a 45 year old person of sound mind and body want to give someone power over their finances through the grant of a financial power of attorney? That is unlikely, but it may be appropriate for someone in their seventies or eighties. In short, you need to consult an attorney to draft the document(s) for you, not rely upon a do-it-yourself document found on the Internet.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Be Sure to Include a HIPAA Release With Your Medical Directives

Jan 20, 2013  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Incapacity Planning, Powers of Attorney

Some people in Washington create their own medical directives, not really knowing all the relevant laws or requirements that apply. If you created a living will, healthcare power of attorney, or other advance medical directive, you should take the time to review it and make sure it includes a HIPAA release.

HIPAA stands for the Health Insurance Portability and Accountability Act. It is a federal law that applies in all states, effectively limiting who can view confidential medical information. A HIPAA release is a form in which you detail who has the right to view otherwise confidential medical records about you.

When you make a medical directive it’s important to ensure the appropriate HIPAA release language in that form. If, for example, you fall ill and are no longer able to speak to your doctors, your health care power of attorney will allow someone else to speak to your doctors on your behalf and make medical decisions for you.

If that power of attorney does not contain a HIPAA release, the person making your medical decisions may face some difficulties in reviewing your medical records. This can hinder his or her ability to make knowing choices on your behalf.

If you have recently moved to Washington and have medical directives from another state, you can still usually use these. However, regardless of where you created your advance medical directives, you need to review them to ensure they include a HIPAA release. If they don’t, you should contact an estate planning attorney for information about the best way to include such a release with your medical directives.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Tips for Understanding the Power of Attorney

Oct 20, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Powers of Attorney

If you have ever been confused about the term “power of attorney” then the following paragraphs should help to alleviate some of that confusion, making your life just a little bit easier.

Although power of attorney is used extensively in modern estate planning, its origins lie within the law of agency. As a result, the person that is granting the power is deemed to be the principal; the agent is the person that is receiving the grant of power from the principal. It should be noted that an agent is not required to be a natural person (i.e., a human), but may be a business entity.

There are many different names for the types of power of attorney that may be granted to the agent by the principal. The following three types should serve to provide you with a very general view of the types of power of attorney, as well as the range of things within its reach:

 Durable power of attorney. This grants power that continues even after the principal becomes incompetent or incapacitated. However, for the grant of power to be deemed “durable,” the document granting the power must specify that such power is durable.

 General power of attorney. This grants the agent the power to conduct business on behalf of the principal.

 Special power of attorney. This grant of power is only for a specific purpose and will expire when, and if, that specific purpose is accomplished.  It is frequently used in commercial or business settings.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

2 Facts About Choosing A Financial Power of Attorney

Oct 18, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Powers of Attorney

Though financial powers of attorney are one of the most useful documents available in estate planning, they are often the subject of common misconceptions. When you create a power of attorney, you choose someone who will act on your behalf in relation to any financial matters you have selected. The person you choose is known as your agent or attorney-in-fact. Here is what you need to know about someone you choose to serve in this position.

An attorney-in-fact is not a lawyer

A person whom you select to serve under your power of attorney as your attorney-in-fact only gains those powers you have specifically identified in the document. By naming someone attorney-in-fact, that in no way implies any connection to the ability to practice law. Just because a person is named attorney in fact does not mean that person has to be a licensed lawyer nor does it give that person the right to practice law. The term “attorney-in-fact” is simply a title, one that has no relation to being a lawyer or even having legal experience or expertise.

Your attorney-in-fact must be competent and willing

Whenever you create a power of attorney you must select someone who is legally competent to serve. This means the person must be a legal adult, and must be mentally capable of making decisions. This usually is not a problem, but it can be if, for example, you choose a minor child to act as your agent. It can also be a problem if the person you select refuses to serve and you have not selected a backup candidate.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Elder Care Documents For Medical Emergencies

Oct 15, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Financial Planning, Powers of Attorney

As we get older, the likelihood that we’ll need medical care or need to be treated for a medical emergency rises dramatically. All elderly people need to be ready for this possibility by taking the time to prepare some specific legal documents which can come in handy in times of medical emergencies. Here are three of the most important.

Healthcare Proxy

Through a healthcare proxy, also known as a healthcare power of attorney, an elderly person gives someone else the ability to make medical decisions when the elderly person is incapacitated. For example, an elderly parent can make a healthcare proxy which names the parent’s adult child as the person doctors can speak to for medical decisions after an accident which leaves the parent unconscious or unable to express decisions.

Advance Medical Directive

You can also make a medical directive, commonly called a Living Will, so you can set down in writing what medical care you want, or don’t want, to  receive. A Living Will is often used in conjunction with a healthcare proxy so the person you name as proxy will have guidance when making medical decisions.

Financial Power of Attorney

If you are ever incapacitated, someone will also have to look out after your financial affairs. You can designate someone to do this through a financial power of attorney. Similar to a healthcare power of attorney, the financial power conveys the legal ability to make decisions so you can be sure your finances are managed if you can no longer do so yourself.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Creating a Financial Power of Attorney – 3 Key Issues

Sep 04, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Powers of Attorney

Questions

When you decide to grant someone else legal authority to make decisions on your behalf you’ll likely have a lot of questions. It’s important that you always write these questions down and remember to ask your estate planning attorney about them. To help you with this, find a notebook or notepad in which you can write down important questions and bring them to your attorney’s attention during your next meeting.

Formalities

If you are creating a financial power of attorney you must ensure the document complies with state law. Even if you decide to use an online form or something you have found in a collection or book, you need to have that document reviewed by an attorney in your area. State laws differ, and Internet information, as well as pre-made products, can often contain serious mistakes or omit issues you haven’t thought about.

Agents

When you make a power of attorney you must select an agent who will receive the decision-making authority you delegate. It’s vital that you select someone who will be responsible enough to make these decisions, but it’s also important to ask that person if he or she is willing to take on this role. You should also have several alternate names available and listed in the power of attorney in case your first selection cannot or will not serve.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Moving Means Updating Your Estate Plan

May 23, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Powers of Attorney, Wills and Trusts

Of all the plans and details involved in moving to a new home, updating your estate plan is probably pretty low on your list of priorities. Nevertheless, it’s important that you review your estate plan after you move, preferably with an estate planning lawyer who is familiar with the laws of your new state. If your move takes you across state lines, you’ll want to make sure your estate plan and all your estate planning documents are ready to go if you need them.

Document 1: Your powers of attorney

Though state laws on creating powers of attorney are slightly different, what’s more important to someone who moves is the people whom you’ve selected as your agents. If you ever need your power of attorney, you will want to be sure that the people acting as your agents can perform their duties easily when needed. If you have suddenly moved hundreds or thousand of miles away, it can be very difficult for your agents to serve your needs. Review your powers of attorney and consider nominating new agents, preferably those who are closer to you.

Document 2: Your last Will and testament

Technically speaking, your Will is valid in all states as long as it meets the legal requirements of the state where you created it. Practically speaking, however, there are small changes that your Will may need in order to prevent potential problems once it comes time to use the document. Always review your Will after you’ve moved, and consult with your state planning lawyer so you know what changes you will need to make.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

The Basics of a Health Care Power of Attorney

Oct 28, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Health Care Directives, Powers of Attorney

A power of attorney is the next best thing to a magic wand.  Within a power of attorney, you authorize a trusted loved one to make decisions on your behalf.  A health care power of attorney authorizes your agent to make medical decision, if you cannot.

  • If you’re age 18 or older, you need an up-to-date, comprehensive health care power of attorney.  Your document might be called a “medical” power of attorney; it’s the same thing.
  • When you execute a health care power of attorney, you are referred to as the “principal.”
  • The trusted helper you name to help you is called an “agent.”
  • Always ask permission from your potential agent before naming him.  During that conversation, explain the duties of a health care agent.
  • Always name back-up agents as well, in case your chosen agent is unwilling or unable to serve.
  • Important characteristics of an effective health care agent include love for you, confidence in communicating with medical personnel, and ability to deal with stress and medical issues.
  • Your health care power of attorney will be effective when you are unable to give informed consent; it’s not effective immediately, only when you need it.
  • Examples of agent duties include hiring and firing doctors and other medical professionals, consenting to a blood transfusion or surgery, choosing a medical facility.
  • If you have a living will or organ donation authorization, your agent is bound to uphold these documents as they are advanced directives; you are either providing or withholding informed consent in advance for some time in the future.
  • You also need a HIPAA release.  Your health care power of attorney may include the HIPAA release or it may be a separate document.
  • The HIPAA release authorizes your medical personnel to communicate with your health care agent.

If you or your loved ones don’t have an up-to-date, legally valid health care power of attorney, consult with a qualified estate planning attorney.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.