There is a common misconception among many people engaged in estate planning and elder care that the powers a person grants in a power of attorney remain in effect after the person dies. There is a similar misconception that the person named as a personal representative in a will has authority to act while the person whose will it is remains alive. Nothing could be further from the truth. A power of attorney and a will are quite literally as different as life and death.
Power of Attorney explained in layman’s terms
A power of attorney is used to delegate authority while someone is alive. Two of the most common examples in estate planning and elder law are powers of attorney for health care and finances. In a financial power of attorney, person A grants person B the authority to make financial decisions for person A while person A is alive. This can include accessing bank accounts, buying or selling real estate, transferring or selling stock, creating and/or funding a trust, and more. The power granted can be as limited or expansive as person A desires within the parameters of the law. Similarly, in a health care power of attorney, person A grants person B the authority to make health care decisions for person A while person A is alive. This can include the authority to consent to medical procedures, placement in an assisted living facility or nursing home, removal from life support, and more. Again, the power granted can be as narrow or expansive as person A desires within the limits of the law. However, when person A dies, so does the power of attorney along with the authority granted to person B. It is at this point that a will takes over.
A Will explained in layman’s terms
A will sets forth a person’s wishes as to what should happen with his or her assets upon his or her death. This can include transferring ownership of things like a house, personal property, a vehicle and more to a spouse, children, other family members, individuals who are not relatives, or charities among others. Many parents also nominate a guardian for their minor children in their will. As with powers of attorney, provisions transferring property or nominating a guardian must be drafted within the limits of the law. As part of a will, people often nominate a specific person to act as their personal representative to see that the wishes they express in their will are carried out when they die. Thus, a personal representative has authority to act for a person only after the person dies, even though the power granted to the personal representative in the will is often quite similar to the power granted in a power of attorney.
Tying the two together
Problems often arise when a person who was acting under a power of attorney attempts, with all good intention, to continue to act after the person for whom he or she was acting dies and it is really time for the personal representative to take over. The result can be confusion and frustration among family members when the power of attorney is no longer honored by banks, care facilities, and other institutions. In addition, people often have very specific ideas about who should manage their affairs while they are alive and who should manage their affairs after they die, and what power each person should have.
Here again, confusion over who plays what role can create stress among family members at an already difficult time.
One thing that a power of attorney and a will have in common is that careful consideration should be given when deciding who should have the power to act under each document and the extent of the powers granted. Investing the time and resources into working with a competent estate planning or elder law attorney to make sure these documents are set up properly, with an emphasis on making sure the client understands how the documents are intended to work, pays dividends in terms of reducing conflict and confusion among family members and saving time and money when these powers are needed.
James Guckenberg is an attorney with Halling & Cayo, S.C. He practices in the areas of estate planning, elder law, and civil litigation. He is also a trained mediator.
This article is for informational purposes only and should not be considered legal advice. For more information and to discuss your estate planning needs, please call Jim at (414) 271-3400 or e-mail him at: [email protected] or fill out the form below!
Jim is an attorney with Halling & Cayo, S.C. His practice focuses on workers compensation, personal injury, insurance litigation, and estate planning. He is a trained mediator and has additional experience in family law and general civil litigation.
Email Jim: [email protected]