Power of Attorney and Decision Making in the United States

Learn about poa and why you need one

Thinking about your own death is scary and thinking about the passing of a loved one can be even scarier, but that doesn’t mean we shouldn’t talk about it. While planning for the end of life is not an enjoyable task, it has the benefit of making that time easier on your caregivers and family members. Unfortunately, one of the only certainties in life is that it will one day come to an end – so it’s best to be prepared. Having a Power of Attorney in place will help your family members know what to do if you become mentally incapable of managing your affairs.

What is a Power of Attorney?

A Power of Attorney is a legal document that gives your attorney the power to make decisions on your behalf. Exactly which decisions and how much power the attorney is granted is determined by the specific language of the document.

In the Unites States, there are generally two main types of power of attorneys, an Ordinary and Durable Power of Attorney. The purpose of an ordinary power of attorney is when you are mentally competent and capable of acting for yourself but you are unable to do so. An example of this is if you were to leave the country and need someone to manage your property or investments while you are away, the ordinary power of attorney would be the one doing that.

When looking at a durable power of attorney, also known as an enduring power of attorney, this role is created when you are still mentally competent. Once this step is completed, the power of attorney is valid whether or not you are mentally competent. The purpose of this power of attorney is to protect your affairs if something were to suddenly happen.

Both types of power of attorneys can be effected immediately or on a specific date stated in the documentation.

Branching off of this, there are two subcategories; general and specific powers of attorney. As you can guess by the names, a general power of attorney has authority to make any decision whereas the specific power of attorney is put into place for a specific reason. 

In the United States, a power of attorney does not have any authority over medical decisions whereas a medical power of attorney does – there is a distinction between the two. The power of attorney is in charge when it comes to finances, real estate, business affairs but the medical power of attorney is concerned with your health and medical situations. When choosing your power of attorney this distinguishing factor is stated in documentation to clearly state what your power of attorney has authority over and what they do not have a say in.

Why you need a Power of Attorney

What happens during your end-of-life time period, when you may be unable to make or articulate your own decisions? Setting up a Power of Attorney is an important measure that enables you to plan for the end of your life.

The biggest benefit of putting a Power of Attorney in place is far greater than what the document legally does. It gives you the opportunity to make sure your family or caregiver is organized and ready when it comes to making decisions about your life. It forces you to have difficult conversations about your end-of-life priorities. For example, if you end up in a vegetative or comatose state, is your wish to be kept alive through ventilators and other machines?

These are hard decisions for your loved ones to make on your behalf. Having a conversation about how you want to go when the time comes can relieve some of the pressure off of your loved ones. If you are an elderly parent, or if you have an elderly parent, it might be time to have these difficult conversations – while they are uncomfortable, they lead to more informed decision making and can lighten the burden on your loved ones once you are gone.

Who to Select as your Attorney

The most important factor in choosing who your attorney should be is trust. The person, or people, you select as your attorney will have control over some essential aspects of your life in the moments when you are unable to control them. Even though it’s called a Power of Attorney, your attorney doesn’t have to be a lawyer, it just has to be someone you trust wholeheartedly.

Generally, your attorney will be your primary caregiver. Most of the time this tends to be your spouse, your children, a close friend, and/or anyone that you trust to handle your affairs. You can also grant a Power of Attorney to more than one person or different types of Power of Attorneys to different people.

When and How to Set up a Power of Attorney

Another uncomfortable fact of life is that we can lose our mental capacity at any time in unpredictable ways. While we all want to put the topic of a will or a Power of Attorney off until we’re older, there is value in planning for the end of your life sooner than later.

The uncertainty of life is at top of mind these days with the pandemic. We are constantly being shown that life is precious, that life may not last as long as we want it to. A Power of Attorney for Property can help your family members know what to do if you pass away unexpectedly, and a Power of Attorney for Personal Care can grant them the power to make medical decisions on your behalf if you unexpectedly become mentally incapable.

The only hard and fast rule when it comes to when you should put a Power of Attorney in place is you need to be considered mentally capable, so it’s not something that should be put off. The definition of mentally capable varies from province to province but generally, you need to be able to appreciate that you are making a decision that has financial and legal decision implications.

When you’re ready, talk to a wills and estates lawyer. Lawyers are expensive, and we’re living in a DIY world, but your best bet to ensure that the Power of Attorney meets your needs and protects your interests is to make sure it’s done right by working with a lawyer.

Next Steps – Accessing your Power of Attorney

A power of attorney is greatly beneficial, but it’s also important to make sure that you can access your power of attorney when you need it. Unfortunately, we don’t really know when we will become mentally incapable. In some cases where you or your elderly parent has Alzheimer’s or another degenerative disease, mental incapacity can be more predictable. However, it’s also important to plan for the unexpected. We don’t like to talk about it, but accidents can happen at any time, and they can result in mental incapacity (e.g. slipping into a coma after a car accident).

When these things happen, it will be difficult on your family regardless, but having a plan in place and giving your family the certainty of knowing who will help make decisions can lessen the burden. It’s essential to have easy access to important documents like this at a moment’s notice. In a digital world, having a power of attorney form stored in a filing cabinet makes it out of reach.  With online storage solutions like Vaultt, which was built for caregivers, you can easily access and share vital documents at your finger tips. Vaultt lets users scan, upload, store and share information while keeping it safe with end-to-end encryption, so that all your information is in your back pocket and protected at all times. 

Written by Mona Shadid-Campbell