Before my grandfather passed away, he suffered for years from severe dementia; during his last few years he rarely understood where he was or who was around him. He wasn’t a rare case in this regard . . . Worldwide, over thirty-five million people have dementia, and there are over seven million new cases each year. Alzheimer’s is the most common cause of dementia, and it was certainly a cause of my grandfather’s.
When most people think of estate planning, the first document that comes to mind is usually a will. A will is a document that expresses your wishes about the property you own in your own name at the time of your death. If properly written and properly executed, your will is used to guide the court proceedings — collectively called probate — which allow your executor to distribute your things to your beneficiaries.
TAKING CARE OF YOUR FAMILY
But estate planning isn’t just about distributing your things . . . It’s also about minimizing the problems and complications that affect your family. This includes planning for incapacity, which is any period where you are physically unable to make decisions for yourself. What happens if you don’t have a valid power of attorney form? The answer is “nothing good.” If there is no one authorized to sign documents for you, then the court will have to appoint a conservator to act on your behalf. This is incredibly expensive; a conservatorship proceeding will run into the thousands of dollars. A power of attorney form will cost a small fraction of that amount.
There are two documents most commonly associated with incapacity planning. The first, which will be covered by my next blog post, is a health care directive. A health care directive appoints someone (called your health care agent) to make health care decisions on your behalf when you are unable to do so. The other incapacity planning form is a power of attorney form, which is a form you sign to authorize another person (called your attorney in fact) to make financial decisions for you.
TYPES OF POWER OF ATTORNEY FORMS
There are a number of types of power of attorney forms; the most common is a durable power of attorney, which allows your attorney in fact to make decisions for you now and after you become incapacitated. In Minnesota, there are two types of durable power of attorney forms: a statutory form and a common law form. The biggest difference between the two if someone refuses to accepts a properly drafted and executed statutory form, that person or organization can be subject to criminal and civil penalties. This is the reason most estate planners use the statutory form as their default power of attorney form.
A word of caution: once you have signed your durable power of attorney form, your attorney in fact is able to begin signing on your behalf immediately. This can be incredibly convenient if you are traveling or if you and your spouse are living in separate states due to a move or a job change. It can also be great if you have a child who has recently left to go to college and you want to be able to continue to sign their financial documents for them. But you should make sure you appoint someone you trust, implicitly.
A durable power of attorney is sometimes sardonically referred to as a “license to steal,” since appointing someone untrustworthy to manage your affairs gives them the power to do just that. A springing power of attorney is a document that only takes effect at your incapacity; this form is not available in statutory form. You should keep all of your estate planning documents in a safe place where people know to find them (your power of attorney form will be of little use if your attorney in fact is unable to locate it). Contact a qualified attorney to talk about incapacity planning; your family will thank you. As always, I’m here to help.
Philip J. Ruce creates wills and trusts for families who want to feel secure that their loved ones are cared-for. Philip is a trust and estate attorney based in Minneapolis, Minnesota. Philip is the author of Trustee University: The Guidebook to Best Practices for Family Trustees. available at Amazon.com in paperback or Kindle edition (free chapter available here!) He also works with trustees and beneficiaries who need help with their trusts. You can contact him here.