Don't Wait Until It's Too Late: Setting Up Power of Attorney Before You Need It

What happens when you can't make decisions for yourself? Who handles your finances or communicates with your doctors? The answer might surprise you—especially if you haven't prepared the right legal documents.

Attorneys Brenton Begley and John Miller dive deep into the world of Powers of Attorney (POAs), revealing why these documents are critical for everyone, regardless of age or health status. They expertly break down the differences between General Durable POAs for financial matters and Healthcare POAs for medical decisions, explaining how comprehensive documents serve as your shield when unexpected events occur.

The conversation tackles one of the most common hesitations people face—the fear of losing control. Both attorneys provide practical insights into options like "springing" Powers of Attorney that only activate under specific circumstances, while emphasizing that selecting someone you truly trust is paramount. As John notes, "You have to trust the person that you're appointing as an agent" since they'll be making significant decisions on your behalf.

Perhaps most compelling is their warning about waiting too long. Once incapacity occurs, it's too late to create these documents, leaving families with no option but expensive, time-consuming guardianship proceedings. The attorneys share valuable guidance on selecting the right agents, navigating family dynamics, and ensuring your affairs remain in trusted hands even during your most vulnerable moments.

Ready to protect yourself and your loved ones? Visit www.mcelderlaw.com to schedule your free consultation or call 704-259-7040 to learn how McIntyre Elder Law can help you create Powers of Attorney tailored to your specific needs.

Episode Transcript

Brenton Begley (00:00):
Hi and welcome to the Elder Law Report.
My name is Brenton Begley, I'man attorney and partner with
McIntyre Elder Law and I'mjoined today by John Miller, one
of the attorneys in ourHendersonville office.
Hi, john, hi, brenton, a powerof attorney in place, knowing

(00:22):
that there are two major typesof powers of attorney First, the
general durable power ofattorney and then, second looks
like the background effects areon Second, the healthcare power
of attorney, which is, you know,obviously for healthcare
purposes, and the generaldurable power of attorney being
for legal and financial purposes.

(00:44):
So, john, why would it beimportant for somebody to have a
power of attorney put in place?

John Miller (00:53):
Well, I think it would be important for everyone
to have a durable power ofattorney in place, because you
never know what's going tohappen.
A durable power of attorneyallows someone to come in and
step into your shoes and do thetype of transactions that may

(01:13):
need to be done.
Let's say, for example, thatyou are in the hospital and need
banking transactions performed.
That durable financial power ofattorney would allow that to
happen.
Basically, you never knowwhat's going to happen, so it's
good to have that in place.

Brenton Begley (01:33):
Right.
So you know we don't have acrystal ball and we really don't
know what someone's going toneed to do on our behalf.
So you know a really good powerof attorney and you said it
well you know, a power ofattorney appoints somebody to
act on your behalf as if theywere you for legal and financial
purposes, health care purposes.
So they basically step in yourshoes.
So we don't know what they'regoing to need to do.

(01:55):
So the power of attorney, ifit's well written, is going to
be comprehensive.
It's going to cover everything,right?
Because maybe you know, maybe Ihave bank accounts, maybe I
have IRAs, maybe I have aretirement account, right?
Maybe I have a life insurancepolicies, real property Lord

(02:16):
knows what may need to be donewith those things to help
protect it If I am ever in asituation where maybe I'm
incompetent, incapacitated needyou know indefinite long term
care?
Maybe I'm incompetent,incapacitated, need you know
indefinite long-term care, youknow we don't know what an
attorney may recommend to helpprotect those assets, get me
qualified for, like a muchneeded benefit to pay for that
long-term care.
So really, if I'm going to puta power of attorney in place, I

(02:39):
want to make sure that it iscomprehensive and covers really
anything I can do for myself.

John Miller (02:44):
That's certainly true, and that's actually one of
the things that I like aboutour power of attorney that we
prepare.
It is very comprehensive andcovers situations that maybe
folks haven't thought of, maybeeven that other attorneys
haven't thought of.

Brenton Begley (03:00):
Right, yeah, and you know, and you might hear
too well, John, I don't want togive up control, you know I
don't want to, I don't want tohave that.
So I don't think I want to do apower of attorney right now
because I don't want to give upcontrol.
What would you say to somebodywho has that type of concern?

John Miller (03:17):
Well, a couple of things.
Number one you can have a powerof attorney that's called a
springing power of attorney thatcomes into effect.
Have a power of attorney that'scalled a springing power of
attorney that comes into effect,for example, when two positions
may say that you are notcompetent to handle your affairs
.
So you certainly could have aspringing power of attorney that

(03:37):
comes into effect when needed.
The other thing I would say isthis Trust the person that you
are appointing as an agent.
They're going to be speakingfor you, signing documents on
your behalf, and that's that'svery important.
You have to trust the personthat you're appointing as an

(03:58):
agent.
I had someone earlier this weekthat they wanted to put a lot
of limitations on the power ofattorney.
So one of my questions to themwas you know, do you really
trust this agent?
Right, and I think that's aconcern and something you want
to make sure that you deal with.

Brenton Begley (04:19):
Right, yeah, I mean that's very perceptive of
you because you know you mayhave an individual who just has
a difficulty trusting otherpeople, even if they are
trustworthy, and then you mayrun into folks who you know have
, you know, no difficultytrusting people, but the people
that they have in their life maynot be, they may have not had

(04:41):
these conversations, may notknow how trustworthy maybe.
Naming a child is One of thethings that I see a lot.
A concern that a lot of clientshave is that if they name one
child, how will that child kindof communicate and speak to the
rest of the family, right, sure?
That could be a difficulty there.

(05:01):
But what I tell clients all thetime is it's not a popularity
contest.
That could be a difficultythere.
But what I tell clients all thetime is it's not a popularity
contest.
You know I'll have.
I ask people, hey, what you know?
Have you given any thought towho you want to name as power of
attorney?
And they'll say, well, you know, my oldest son, he's a
accountant.
Or my oldest daughter, she's anurse.
Or you know, they'resophisticated, they're good at
doing this for themselves, so Ithink they do a good job for me.

(05:24):
But you know, if I name them, Ithink you know one of the other
children will be jealous orwill be offended.
And you know there's two thingsI say to that.
Number one it's not apopularity contest.
You need to name the personthat you trust and who's going
to be able to do the job andsophisticated enough to do the
job.
If someone is not able tobalance their own checkbook,

(05:45):
then they're certainly not goingto be able to do it for you,
right?
And then the second thing is isthat you know that just tells
you that you need to, as thepatriarch or matriarch of the
family, encourage goodcommunication between your
children or your loved ones,because you know that's
something that we can't give youas a legal tool.
Good communication among familymembers but we do encourage as

(06:09):
part of the estate planningprocess, is tell people what's
going on and why and what theattorney recommended, and the
attorney can always helpfacilitate those conversations
as well.
So what about, you know, healthcare power of attorney.
Why might somebody want to havethat health care power of
attorney put in place?

John Miller (06:28):
Well that again, you never know what's going to
happen.
I think most hospitals, or eveneven day day clinics, they're
going to ask you when you go in,do you have a health care power
of attorney in place?
And you want to have that inplace because someone may have
to make a decision on yourbehalf.
You may be under generalanesthesia, something may happen

(06:54):
as far as a complication.
So, again, it's easier to havethat documentation in place than
to have to be potentiallyrushing around at the hospital
or clinic to fill out thedocument that they may hand you.
You may be under anesthesia oryou'll certainly be potentially

(07:18):
nervous about the procedure, soit's better to have that in
place ahead of time.

Brenton Begley (07:23):
Right, that's your own document too.
It's not even a real healthcare power of attorney, it's
just an internal document thatsays who they can talk to.
They can't talk to you becausethey put you under anesthesia or
something similar.
You know that's.

(07:43):
And attorney generally, you canname one or multiple people
under that power of attorney.
I personally think, too, thatit's good to have one
quarterback on the field at atime, right, so you can give
them one agent, give them theauthority.
But it's good to have multiplebackups there and available, if
at all possible, right, so youmaybe name your, your spouse

(08:08):
first, and then a child second,and then maybe another child,
something like that.
That's, that's what I see a lotof people end up doing exactly
and I think again, you youmentioned that you want to.

John Miller (08:20):
You want to put someone in that role that's the
best equipped to handle it.
So if you have a son ordaughter that's a CPA, great.
They may be the perfect fit forthe durable financial power of
attorney.
They may not be for the healthcare power of attorney.
You know, you may be luckyenough to also have a son or
daughter that's a nurse and theycan help you with that a nurse

(08:43):
and they can help you with that.

Brenton Begley (08:44):
And two, you mentioned something I want to go
back to rushing around tryingto put it in place what happens
if you do become incompetent orincapacitated?
Can you still do a power ofattorney at that point?

John Miller (08:57):
No, no.
You are cut off from doing that.
You're not competent.
And then you're looking at aguardianship, which, as we know,
can be a very expensive andtime-consuming process.

Brenton Begley (09:12):
Can be Absolutely.
Yeah, it sounds like power ofattorney is an incredibly
important thing to have in placeup front, way before you ever
need it.
Absolutely place upfront waybefore you ever need it.
Absolutely.
Well, there you have it.
So if you have questions aboutpower of attorney how they work,
how to set them up, what theeffect that that power of

(09:33):
attorney may have on youroverall estate plan, what the
agent may be able to do on yourbehalf with the power of
attorney, or who best to name asan agent under power of
attorney, give us a call.
We'd love to help.
Okay, you can get moreinformation by visiting our
website, wwwmcelderlawcom, andyou can also use that same

(09:58):
website to schedule your freeconsultation today, or give us a
call 704-259-7040.
This has been the Elder LawReport, john.
Thank you very much.
I'll see you next time.
Thank you, brenton.
See you next time.