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Planning

Navigating a POA, Durable POA, and a Living Will

Power of Attorney (POA): 

A document signed and notarized by you, which authorizes the person you have chosen to sign documents and conduct legal business for you. For example, a soldier will give power of attorney to his family to pay his bills and manage his assets while the soldier is over seas. Unless the document is “durable,” the authority will cease when and if the person who granted the power becomes legally incompetent. Power of attorney authority ceases at the death of the person who granted the power.

Durable Power of Attorney:

For estate planning needs, the durable power of attorney is critically important: Who will take care of the bills? Manage investments? Provide care to loved ones? A power of attorney allows a person you appoint – your “attorney-in-fact”—to act in your place for financial purposes when and if you ever become incapacitated.  A power of attorney is durable when it contains the words:  “This power of attorney shall not be affected by the disability of the principal”.

 

When a durable power of attorney is in place, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservatorship, your representative may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney, such as a sale or mortgage of real estate. When the courts have to become involved, your family will lose precious control, money, and time over your assets.

 

Take a copy of your power of attorney document to your banks, credit unions, investment advisors, and others. Ask each institution about its policy for power of attorneys. Ask the institution to give you in house forms where appropriate that are consistent with your own documents. You want to avoid the possibility that the institution will not honor the document when that time comes. Finally, you will want to choose wisely and review your choices often. Don’t choose someone just because they live in Hawaii. Choose the best person available.

Power of Attorney for Health Care and Living Will:

The so called “living will” is a phrase used to describe a document in which you can direct that no extraordinary life support measures be taken at the time of your death. If your estate plan was written before 1995, you likely have both a power of attorney for health care and a living will. When these documents evolved it was customary that two physicians were required to “certify” that you were terminal before life support could be withheld.

Modern living wills are now called “Advance Health Care Directives” or “Directive” for short. The statutory standards that can be invoked under Hawaii law if you choose no life support include more than a terminal illness:

I do not want my life prolonged if (i) I have an incurable and irreversible condition that will result in my death within a relatively short time, (ii) I become unconscious and, to a reasonable degree of medical certainty, will not regain consciousness, or (iii) the likely risks and burdens of treatment would outweigh the expected benefits.

The Directive will also offer the choice of life support within generally accepted health care standards, among other things.

So if you still have a living will in your file, what should you do? Ask your attorney or Legal Aid, or the hospital, or Kaiser for an up to date Directive form. Send copies of the new Directive to your doctor, family, and keep the original easy to find.

POA Tips:

1)           Check the date on your power of attorney.  If the document is more than five years old, call your attorney and arrange to have a new document signed.

2)           Personal contact between you, your banker, your broker, and your agent (the person who holds the power of attorney) a goes a long way in a small town like Maui.  Take the person who will serve as power of attorney with you to meet the bank manager, broker etc, for a face-to-face meeting. 

3)           Often a financial institution will decline to honor an attorney drafted power of attorney form for a variety of reasons.  To avoid that problem ask your bank or broker if there is an “in house” power of attorney form that should be used.  These forms can often be accessed on line.  For example, if you have investments at Vanguard, their website allows you to download the company’s in house form to use for power of attorney.

4)           If the power of attorney is going to be used soon (for example, if a disability event has already occurred), ask your attorney to record the original document at the Bureau of Conveyances and obtain certified copies to give to the bank and broker.

Written by Elizabeth Ivey, Attorney at Law, Ivey Fosbinder Fosbinder LLC

One Comment

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