ALL ADULTS NEED POWERS OF ATTORNEY
By: Jim Cunningham
Do you have adult children, possibly just turning 18 and going off to college? Did you know that as a parent you no longer have authority to make financial or health care decisions once your child reaches the age of 18? That’s right, they are adults and the only way you can legally make decisions for them is if a court determines they need someone to care for them and establishes a conservatorship or, in the alternative, your child executes powers of attorney for financial management and health care decisions and names you in those documents to make decisions for them.
Powers of attorney are very useful estate planning tools, and it is important to understand how they work. In California, you need a power of attorney for financial management and a power of attorney for health care decisions. A “power of attorney” is an authorization for someone to act for you in one way or another. If you look in a dictionary the word “attorney” refers to someone authorized to act for another person. “Attorneys at law” have a license to practice law from the State to represent others in legal situations. “Attorneys in fact” are persons you name in a financial power of attorney to represent you in more specific, personal circumstances. Powers of attorney can be limited to specific situations (such as a real estate transaction) or specific time periods (while I am out of the country on business), or they can be general and unlimited in duration, as might be the case if you wanted to give your spouse or a parent authority to act on your behalf. Powers of attorney might be conditional, for example, you give a person authority to act on your behalf only when you become incapacitated. For the most part, Powers of attorney can always be modified in case you have second thoughts.
The word “durable” in a power of attorney refers to a California law that says that a power of attorney, if containing the correct verbiage, remains valid even though the person signing the document (the “principal”) becomes incapacitated. Without the word “durable” and the required language, a power of attorney would become invalid if the principal became incapacitated. Since the purpose of a power of attorney is often to facilitate assistance during periods of physical or mental incapacity, the forms you use should have the required “durable” language.
A “health care power of attorney” is a document in which you give a person authority to make health care decisions for you if you are unable to do so. This form generally includes a statement of the level of care that you want your health care agent to follow, such as, “Keep me alive no matter what just in case there is a cure for my illness while I am in a coma,” or, “Don’t authorize major medical procedures unless there is a good chance that I will survive and live a comfortable and productive life.” The language used in a health care power of attorney is usually a bit more formal than that, but these examples show the type of instructions you can include in a health care power of attorney.
In summary, a conservatorship is a lengthy and costly process through the Probate Court, but it is the only alternative available if you or your adult child is incapacitated and has not executed powers of attorney for financial management and health care decisions. Don’t wait until tragedy strikes, because then it is too late to execute these documents.
BIO: James Cunningham is an attorney with The Lawyer in Blue Jeans Group, practicing in the areas of Estate Planning, Business Planning, Tax and Real Estate law. Mr. Cunningham can be reached at (619) 683-2545 or firstname.lastname@example.org