Updated: Apr 1, 2021
Let's face it, a durable power of attorney might be one of the most important estate planning documents a person can have. Yet still, m any people who are especially in need of one not only don't have one, but might not even know what a durable power of attorney is -- or how it works.
A durable power of attorney (DPOA) is a practical, protective and powerful estate planning tool that allows a person to designate an agent to act on his or her behalf in case of incapacity. It is all too easy to overlook establishing a DPOA because unlike other estate planning devices, it applies to certain situations during one's life, not their death.
Before we dive in further to explore how you can set up a DPOA to provide maximum protection for yourself, your family and your professional obligations, let's first take a look at a common scenario.
Joe is a relatively healthy 61-year-old man even though he suffers from high blood pressure, a common condition in the U.S. He’s no longer married and has two grown sons, with whom he enjoys close relationships. Joe has a mortgage, a car payment, and runs a small local business that has five full-time employees. Without warning, Joe has just suffered a stroke and is now hospitalized. It looks like Joe's long term prognosis is an optimistic one, but his journey back won’t be fast or without possible bumps in the road. Prior to this untimely stroke, he hadn’t gotten around to arranging his personal legal affairs. Joe has been active his whole life with plenty of energy and vitality. So, like many of us, he wasn't planning on going anywhere, and unfortunately procrastinated on his estate planning. Other than a life insurance policy he's had since his kids were born, he hadn't made any other plans, including what to do in the event he suffered some medical emergency during his lifetime. Unfortunately, with the stroke, he suffered some cognitive injury and now needs lots of help with everything, including decisions about his medical treatments, maintaining things around his home, managing his other personal financial obligations as well as his professional responsibilities. Joe's story is common.
Each year in the U.S., more than 795,000 people suffer a stroke, a medical emergency that occurs when the blood supply to part of the brain is interrupted or reduced. According to the Centers for Disease Control and Prevention, about 610,000 of these are new strokes while about 1 in 4, representing roughly 185,000 strokes, are in people who had a previous one. Strokes can affect the body in various ways, and it is common for stroke survivors to experience some degree of cognitive disability that could impact the rest of their lives.
Joe's medical team thinks he's got a good chance at making a meaningful recovery, but he’s still going to need lots of support. Right now, he's not mentally well enough to handle his financial affairs, such as hospital expenses, nurse care, medications, or where he'll recuperate while in recovery. Joe also can't keep up with the management of his business. His sons want to pitch in to help, but the problem is, no one has the legal authority to act on Joe's behalf since he had no advance provisions set in place. Without a durable power of attorney, everyone's hands are tied.
Because life is unpredictable, a DPOA isn't only appropriate for the aging, but is protective for everyone. By taking the initiative to designate a trusted agent to act on your behalf should you become incapacitated by medical events like a heart attack or stroke like Joe had, or injuries from accidents and other emergencies, scenarios like the one Joe and his sons face can be easily and altogether avoided.
Too often, without the legal authority needed, loved ones and other trusted persons can't step in to assist family members during emergencies like this. The unfortunate reality is that when life happens, this is when you need help the most. But, many of us aren't able to get that help without the proper advance planning.
Joe's sons will face a devastating hardship of having to unexpectedly provide full financial support to keep things going for Joe during his time of need. What's worse, they may also need to bring financial resources to seek help from a court in order to access Joe's life. This is an impersonal, lengthy and expensive process overseen by a judge who will decide what should be done in Joe's best interests according to the default rules of the state. A judge is neutral and will be fair, but nevertheless he or she doesn't personally know Joe or his family members and wouldn't be able to make determinations based on what Joe and those closest to him would personally want.
Considering what many people and their families will endure if caught off guard this way and facing a medical crisis, whether they're one of the 795,000 or countless others who suddenly experience a wide range of other medical emergencies that could incapacitate them during their life, the devastation, hardship and confusion that follows can be easily avoided by having a DPOA in place ahead of time before such events occur.
For more information about the advantages of having powers of attorney, how to create one a DPOA and other estate planning protections, click here. For general questions about estate planning, to schedule an introductory training or to speak to a lawyer who can help you get started, call (818) 620-7200 or visit www.relatelaw.com.