Powers of Attorney & Living Wills: Who Decides When You Can't Decide?

Power of Attorney Who Decides When You Can't Decide

"I just want a simple will." That's a request I get from time to time during consultations. It's usually around the time I begin discussing the value of having a power of attorney and living will. In the noisy world of advertising, where the shoes you looked at on Amazon follow you around the internet for two weeks, people are more suspicious of sales tactics then ever before. They came in looking for a will, and now I'm trying to sell them some fancy documents they weren't even asking about. As a business owner, that's a sentiment I can relate to. Rarely does a day go by without an unsolicited sales call promising me the world. Why is it then that most of these "simple will" clients end up asking for a power of attorney? Because I didn't try to sell them something they didn't need, I gave them the facts and let them decide. So, what are the facts about these often-overlooked tools? 

POWER OF ATTORNEY

A power of attorney grants authority to a representative, or “attorney-in-fact”, to act on your behalf. A power of attorney can take effect immediately or upon a specific pre-determined condition, such as your incapacity. The value in a power of attorney is the ability for you to designate who should represent your interests, not the court. 

The four most common types of powers of attorney are: 

  1. General. A general power of attorney grants your representative the authority to act on your behalf and make any decisions you yourself could make. A general power of attorney is often used to assist with financial matters, business transactions, real estate, and tax issues. Unless you specifically revoke it, a general power of attorney remains in effect until your death or incapacity. 
  2. Limited. A limited power of attorney grants your representative the authority to act on your behalf for a specific and limited purpose. A limited power of attorney is commonly used to perform real estate transactions when the buyer or seller cannot be present. A limited power of attorney generally expires after the specific purpose has been performed. 
  3. Durable. A durable power of attorney can be either general or limited. What differentiates a durable power of attorney is that it remains effective upon your incapacity. Without a durable power of attorney, the court will appoint a conservator or guardian to make decisions. Unless you specifically revoke it, a durable power attorney remains in effect until your death.
  4. Springing. Similar to a durable power of attorney, a springing power of attorney survives your incapacity. Uniquely, a springing power of attorney will not become effective until you are actually incapacitated or another specific triggering event contained in the power of attorney takes place. 

In North Carolina, in order for a durable power of attorney to survive incapacity it must be registered in the office of the register of deeds of the county designated in the power of attorney.

When selecting your representative, it is extremely important to select someone you trust, because that person may have unlimited access to your assets and may be called upon to make end-of-life decisions on your behalf. It's also important to discuss your plans with your potential representative before designating them to be sure they are willing and able to serve as your representative.

LIVING WILL

A living will, sometimes called an “advanced directive”, is a document that provides direction to health care providers during your incapacity. Often, a living will contains authorizations to provide or withhold life- prolonging measures such as blood transfusions, surgery, CPR, a respirator, and water and nutrition, that may only delay an inevitable death. If you choose to forgo life-prolonging measures, your living will can also provide for palliative care, often called “comfort care,” that serves to keep you comfortable and out of pain as life ends naturally. Keep in mind that so long as you are able to communicate your wishes in any way, your Living Will will never supersede your wishes.

HEALTH CARE POWER OF ATTORNEY

A health care power of attorney is a durable power of attorney that grants your representative the authority to act on your behalf and make decisions regarding your health and medical treatment in the event of your incapacity. As with your living will, your health care power of attorney may also include directives and instructions for your health care provider regarding the use of certain treatments and life-saving measures. Frequently a health care power of attorney and a living will are contained in the same document.

North Carolina maintains an Advance Health Care Directive Registry where your health care power of attorney or living will can be registered and made readily accessible to your health care provider and family. http://www.secretary.state.nc.us/ahcdr/Forms.aspx

My wife and I often discuss which parts of our plan are most important to us, the will or the powers of attorney? On the one hand, our will ensures our wishes are carried out when we're gone, but the powers of attorney ensure our wishes are carried out while we're still here. Thankfully, we're not stuck choosing between the two. As you can see, these documents can provide immense value to any estate plan. To learn more about powers of attorney, living wills and more Click Here to schedule your Virtual Estate Strategy Session with me, or sign up for an Estate Planning Essentials Webinar. Choose a day and time that works best for you and we'll do the rest. As an added benefit, all members of our Estate Maintenance Program have 24/7 access to their entire executed plan through our secure client portal, accessible through any device. 

Click Here for more estate planning advice, informational videos and articles, as well as a copy of my new Ebook “Six Things to Know Before Making a Will or Living Trust." 

 

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Robert Ingalls

I am the founding member of Ingalls Law, PLLC. My practice focuses primarily on Civil Litigation, Personal Injury, and Workers' Compensation. I graduated from East Carolina University with a Bachelor of Science, and received my law degree three years later. I have been admitted to the North Carolina State Bar and the United States District Court for the Western District of North Carolina. I represent clients in the areas of Civil Litigation, Workers' Compensation, Employment Discrimination, and Personal Injury. I have also represented employees and employers in hundreds of unemployment benefits hearings throughout North Carolina. In addition to my law practice, I am an active member of the North Carolina Bar Association, Mecklenburg County Bar Association, American Bar Association, Delta Theta Phi Law Fraternity, and The North Carolina Advocates for Justice.