Essential Estate Planning Documents During the Pandemic
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What can you do about our predicament other than wear a mask in public, wash your hands a lot and avoid large indoor gatherings? As an estate planner, you should have up-to-date powers of attorney and inform the agents you name in those documents how they can access them if they don’t already have copies.
I have heard plenty of stories of the virus progressing from, “I don’t feel too bad,” to “I can’t get out of bed,” without much warning.
Let’s ask and answer some questions about powers of attorney (POAs) so that you are prepared if you or your clients have the misfortune of becoming infected.
What is a POA?
It is delegation of powers from a principal to an agent; the agent must act in a fiduciary capacity on the principal’s behalf.
How does a POA differ from a DPOA?
The agent’s ability to act pursuant to a non-durable power of attorney expires when the principal becomes incapacitated. The agent’s ability to act pursuant to a durable power of attorney (DPOA) does not expire when the principal becomes incapacitated.
How does a health care POA differ from a living will or a DNR?
A health care POA gives the agent a much broader range of powers than a living will or do-not-resuscitate (DNR) order. Typical powers included in a well-drafted health care POA are listed later in the article. By contrast, a living will usually deals with just one aspect of the principal’s instructions – the physical circumstances (e.g., a persistent vegetative state) under which the principal does not want heroic measures taken to keep him or her alive. A DNR binds the physician treating the principal to take no steps to restore the principal’s heart or restore breathing in the event of cardiac arrest or respiratory arrest – typically the performance of CPR.
Do you need to have a separate health care POA and financial POA?
No. The two kinds of POAs may be combined into one document. However, the reason that you usually see them in separate documents is that the agents that you would name on each document may be different individuals.
Can I name a bank or trust company as my agent on a POA?
Under the law, a corporation as well as an individual may act as an agent. In practice, one seldom sees a corporation such as a bank or trust company serving as an agent under either a POA or a DPOA. With respect to a health care POA, there are prohibitions on the treating health care provider or an employee, owner, director or officer of the treating health care provider to serve as agent under most circumstances.
Does a POA become effective before a doctor pronounces you incapable of acting on your own?
This question reminds us to distinguish between “springing” and non-springing POAs. Springing POAs contain a provision that the powers of the agent do not become effective until one or more physicians certifies that the principal is incapable of acting on his or her own behalf. A non-springing POA does not require that certification. Springing POAs used to be the norm for financial POAs and less so for health care POAs.
Does a POA need to be notarized or witnessed?
A DPOA needs to be notarized in most states. Similarly, a healthcare POA must be notarized in the same manner as a DPOA.
Health care POAs may need to be witnessed by two disinterested witnesses or notarized. A financial DPOA must be notarized.
What provisions should a health care POA contain?
In most states, there is no shorthand instruction like, “My agent gets the standard health care powers.” Rather, you must specify what powers the agent is entitled to exercise. A thorough healthcare POA would include the following information:
- Names of the principal and agent;
- Method of making decisions if there is more than one agent;
- Grant authority to the agent(s) to do the following:
- o Consent, refuse consent, withdraw consent to any care, treatment, service or procedure;
- o Make decisions about organ donation, autopsy and disposition of body;
- o Make all necessary arrangements at any hospital or similar institution;
- o Employ or discharge health care personnel;
- o Request, receive and review any information relating to personal affairs, physical or mental health affairs, and to execute any releases of other documents in order to obtain such information;
- o Give or withhold consent to an autopsy or postmortem examination;
- o Make or decline gifts of principal’s body parts;
- o Nominate a guardian or conservator for the principal; and
- o Give consent on behalf of the principal to sell, gift, transfer or mortgage the principal’s homestead or his or her interest therein under certain conditions.
- Specify whether there are any limits on the agent’s authority.
In most states, the principal has fairly broad powers that will commence upon a certification by two licensed physicians upon examination that the principal is incapacitated and will remain that way for a period of time. However, the principal must specifically grant authority to the agent to direct a healthcare provider to withhold or withdraw artificially supplied nutrition and hydration, but this limitation does not mean that artificially supplied nutrition and hydration should be continued if the attending physician determines that the patient cannot tolerate it.
What provisions should a financial DPOA contain?
Financial DPOAs can either specify that they grant (1) all powers for all lawful purposes; or (2) powers for particular actions or purposes only. Even if the DPOA grants “all powers,” certain powers must be specifically listed in order in order to grant them to the agent. Those powers include matters like:
- Executing, amending or revoking a trust agreement;
- Funding a trust with the principal’s assets if the trust was not created by the principal;
- Making or revoking a gift;
- Disclaiming a gift;
- Creating or changing survivorship interests;
- Designating or changing beneficiary designations;
- Nominating a guardian or conservator; and
- Exercising, revoking or amending a power of appointment.
However, there are some powers that may not be granted in a DPOA in any case, even if specifically listed. Those include:
- Making, amending or revoking a will;
- Making, amending or revoking a living will;
- Requiring the principal, against his or her will, to take any action or refrain from taking any action; and
- Carrying out any actions specifically forbidden by the principal at a time when the principal was not disabled or incapacitated.
More than 40 years into his practice, Dysart Taylor shareholder/director Joe Price helps businesses and individuals plan for their future through estate planning, tax planning, business succession planning and wealth preservation. He can be reached at [email protected] or (816) 714-3024.