Legal-Ease: Do I really need powers of attorney?


By Lee R. Schroeder - Guest Columnist



Many people have wills. Wills control what happens to our possessions after we die. Because we cannot handle our own affairs after we pass away, we need to empower others to carry out our wishes through instructions in wills.

While we are alive, we can obviously make our own decisions. However, unfortunately, we may someday find ourselves in circumstances where we cannot make our own decisions. Such circumstances arise most frequently in the context of accidents, illnesses (physical or mental) and simple aging. Other times, we may be able but unwilling or not desiring to make our own decisions.

The “while we are alive” version of a will is a power of attorney. It is easiest to think of a power of attorney as an “employment agreement,” even if the person making decisions for someone else is not paid.

The “principal” under a power of attorney is like the employer, a person who does not, cannot or will not make decisions for himself or herself. The “agent” under a power of attorney is like the employee who makes decisions for the principal.

Traditionally, powers of attorney for healthcare decisions have been separate documents from powers of attorney anything else other than healthcare (like finances).

Powers of attorney can identify multiple agents and can also list successor agents to act if the initial agent or agents is/are unavailable.

“Durable” is a word to describe some powers of attorney. “Durable” powers of attorney are simply powers of attorney that are “durable enough” to apply/work when the principal is not competent to handle the principal’s own affairs. It seems obvious that powers of attorney would be needed when the principal is disabled or otherwise unable to handle the principal’s affairs. However, traditionally, powers of attorney would stop working/become inapplicable if the principal was incapacitated. Now, almost all powers of attorney are durable.

If someone cannot make his or her decisions and does not have a power of attorney, those who seek to make decisions for that incapacitated person must seek a guardianship over the incapacitated person. In the context of guardianships, the incapacitated person is called the “ward,” and the person empowered to make decisions for the ward is called the “guardian.”

Guardianships are rather expensive and cumbersome, because there are required classes, background checks and court hearings for prospective guardians, and guardians must report to the local probate court regarding every decision made for the ward including details regarding how the ward’s finances are managed.

If someone is unable to make decisions for himself or herself, the ability for family members to make decisions for that incapacitated person is quite limited, even in our rural region. The days of a spouse being able to sign legal and financial documents for the other spouse in the absence of a power of attorney have passed.

Outside of wills, powers of attorney might be the most important documents for people to have in place, because powers of attorney save the time and money of guardianships.

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By Lee R. Schroeder

Guest Columnist

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.

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