Why You Need A Durable Power of Attorney

Long-term care insurance and Medicaid planning can be critical to the type of treatment an individual receives during their vulnerable, elderly years. However, many people become mentally incapacitated (or fall ill) before making such arrangements, placing their safety and well-being in jeopardy.

A durable power of attorney (DPOA) authorizes other individuals to handle certain financial, healthcare, lifestyle, and other matters on your behalf. Because it is durable, it remains in effect if a person becomes incapacitated, such as due to an accident or illness. However, in Florida, an appointed agent only has the powers explicitly granted in a DPOA, meaning that if you fail to include specific language regarding Medicaid planning, he or she may be unable to make vital decisions regarding your long-term care.

Even if you have a Durable Power of Attorney, if it does not specifically authorize your agent to engage in Medicaid Planning, the agent may not be vested with the legal authority to undertake such planning and actions, even if you wanted them to do so. Thus it is critical to have a Durable Power of Attorney drafted by an experienced Medicaid Planning lawyer. As Illinois estate planning attorneys with the experience you need, A/Z Health & Elder Law can assist in preparing a comprehensive estate plan and DPOA that will ensure your affairs are handled according to your wishes, even in the event of incapacitation. We invite you to contact our firm to schedule a consultation to learn how we can help carry out your long-term goals.

Durable powers of attorney help individuals plan for mental decline and medical emergencies. They can also ensure that financial, medical, lifestyle, and other matters are properly managed. For example, if family members must make critical medical decisions, having a DPOA in place can help eliminate uncertainty, fighting, or confusion. However, without a power of attorney, it is usually necessary to get court approval for guardianship (or conservatorship) over a person, which can be very costly.

It is critical to understand that all powers of attorney are not created equal. A general power of attorney can cover a wide range of transactions (including legal, financial, lifestyle, and medical matters). In contrast, limited powers of attorney cover only specific situations, making it vital to ensure that a power of attorney explicitly encompasses all desired transactions, including Medicaid planning.

Another key distinction relates to when a power of attorney is effective. An ordinary power of attorney expires when a person becomes incapacitated, while a durable power of attorney includes particular language that makes it effective even if a person becomes mentally incompetent.

What Types of Transactions Can I Authorize with a Power of Attorney?

The individual you appoint through a durable power of attorney is referred to as an attorney-in-fact (or an agent), although the person does not need to be an actual lawyer. An attorney-in-fact can handle many types of transactions, including (but not limited to):

  • Managing Bank Accounts and Investments
  • Paying Bills
  • Filing Tax Returns
  • Buying and Selling Property or Other Assets
  • Applying for Government Benefits
  • Medicaid Planning
  • Do I Have to Hire an Estate Planning Attorney to Obtain a Durable Power of Attorney?
  • While there are many do-it-yourself powers of attorney available online, it is not advisable to use a template document without first speaking with an experienced lawyer, as even a simple error can result in a document being invalid. When you hire the A/Z Health & Elder Law Firm, we can discuss your specific needs and wishes and recommend documents that will work best for your particular situation.
  • Can I Revoke a Power of Attorney?
  • A power of attorney can be revoked at any time, as long as the individual is mentally competent. As a general rule, it is best to revoke powers of attorney in writing and to notify third parties of the revocation. For example, if an agent is managing a bank account, the bank should be informed that he or she is no longer authorized to manage your finances.
  • If someone abuses their responsibilities and an individual is not mentally competent, it can be much more challenging to revoke a power of attorney. However, it is possible for a loved one to take legal action to have such a person removed. If you are interested in learning more about revocations, our experienced durable power of attorney lawyers would be happy to answer your questions.

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