Many people in their 20s and 30s do not have a Power of Attorney. They think if anything happened to them, their families would be able to make decisions for them.
These people are mistaken.
If you do not have a Power of Attorney the laws, courts and government determine what happens to you and your property, and who gets to make those decisions.
Powers of Attorney are incredibly important documents that set out what would happen in the event a person becomes mentally incapable of making their own decisions (for example, if they are in a coma or develop a serious mental illness).
There are 2 types of Powers of Attorney, although both involve appointing a person (called your “attorney”) to act as your decision-maker. A Power of Attorney for Personal Care allows you to specify particular wishes related to medical treatment, shelter, safety, nutrition or hygiene. A Power of Attorney for Property documents your wishes with respect to your property and finances. Virtually every decision you make in your life is covered by these two documents.
This blog describes 10 reasons why young people need a Power of Attorney (“POA”).
Reason #1: Accessing your spouse’s bank account
If your spouse became mentally incapable of managing his or her property (for example, due to a serious car accident), would his/her bank let you automatically access his/her funds not in a joint account?
The answer: probably not. Being married is not enough.
The bank will almost certainly want to see legal documentation that you are your spouse’s guardian (a long and expensive legal process that often involves going to court) or attorney under a POA for Property.
This is true for your own bank account as well. Unless you make a POA for property no one is allowed to access your money (even if they just want to to ensure your bills are paid on time).
Reason #2: Your religion/culture/values influences your choices
A POA for Personal Care can be used to inform your attorney about your religious, cultural or other beliefs and explain how your beliefs should be considered when decisions are made on your behalf.
For example, a person may want to specify that decisions involving food take into account a person’s Kosher or Halal diet. Your beliefs may affect what you wear or what products you use (such as a vegan who does not wish to wear or use animal products). One client of ours even wanted to ensure that her children would paint her nails and use a particular brand of soap – to her, looking good is part of feeling good and something she truly values.
Reason #3: You love your pet
What would happen to your beloved pet if you suffered from an illness or accident that rendered you incapable of making certain decisions? Who would take care of your pet? Who would pay for grooming, food and vet appointments?
Your POA can have what we affectionately call a “cat lady” clause. You can provide instructions about your preferences as they apply to your pet and even direct your attorney to give money to your pet’s new or temporary owners.
Reason #4: You have specific wishes about who makes your care decisions
People who do not have a POA for Personal Care nonetheless may need another person to serve as their substitute decision-makers. There is a hierarchical list in the Health Care Consent Act that states who is the substitute decision-maker by default.
For people who do not have a “spouse” (a defined term in the legislation) and have not drafted a POA, it is usually their parents. Some people do not get along with their parents. Others would not want to burden them, especially if they live in different parts of the world or have health issues of their own. For a variety of reasons, people whose default decision-maker is their parents may not want this to be the case. A POA for Personal Care allows you to hand-pick your substitute decision-maker. You can even choose more than one person to act together, or designate a back-up in case the first person cannot act.
Reason #5: You want your spouse to have your babies
If you became incapable of consenting to certain personal care decisions, chances are you would not be able to consent to the retrieval of your sperm / egg, or the use of your reproductive material to create an embryo for the purpose of your partner having a child. Your decision-maker may not know your wishes or may be challenged in light of the obvious controversies. Some people want their partner to have clear legal authority to have a child, or another child, using their genetic material. A POA for Personal Care is a place to clarify your wishes with respect to the use of your genetic material.
Reason #6: Because if/when you need it, it will be too late
A POA can only be executed if you are legally capable at the time. No one knows what the future holds and sadly, if you need a POA to come into force, you may not be legally capable of consenting to execute one.
Reason #7: You want to avoid certain medications or procedures
Some people feel very strongly about not taking medications from which they have experienced negative side effects in the past. This is particularly common with anti-psychotic medication. Other people may have religious or ethical objections to certain procedures, or even a general tendency to avoid Western medicine. You are able to expressly state that you do not consent to certain medications or procedures, even if taking those things are objectively in your best interests.
Reason #8: You want control over your finances
Your POA for Property can be very specific with respect to how your money is managed. You can direct your attorney to purchase birthday gifts for your niece or pay for your kids’ education. You can also limit your attorney’s power to certain activities, such as paying your bills, but not allow your attorney control over your business or home. If you don’t make a POA for Property, a family member might apply to become your guardian and obtain full control over all your property – with no idea how you want your money to be managed.
Reason #9: For the sake of your family
Not having a POA can have serious consequences. Your loved ones may have to go to court to be recognized as your guardian. This would likely involve significant delays and expenses.
Family members may dispute over who should become your guardian. In some cases, they will spend thousands of dollars arguing in court.
POAs are relatively short documents. You can visit with a lawyer and have your POA fully executed in a matter of days. The cost is insignificant in comparison with the cost of not having one.
Reason #10: Peace of mind
For the same reason people purchase insurance and have a will, making a POA is a part of future planning that gives you peace of mind in the event something traumatic were to happen. It is an important step for every responsible adult to take.
Note: Lisa Feldstein Law Office drafts and provides legal advice relating to Powers of Attorney. We frequently write articles and present on this topic because we are passionate about the importance of people planning for their futures.
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