You Need to Name Alternates to Your Power of Attorney

Early in my legal career, The Last Will and Testament was the most commonly used estate plan. As a result of tax law changes in the early 1990′s, my estate planning practice began to include the Living Trust. With every Trust, I would include both a medical and financial Power of Attorney (POA). I always felt that it was appropriate to name only one person as a POA. In most cases, spouses would name each other.
After 1994, when Michigan created the Patient Advocate Law, the legal and medical community came together to create a form giving the medical POA not only the ability to make medical decisions but also to authorize a life ending act. The Patient Advocate Designation form became available to the general public in most doctor’s offices and hospitals.
This was a great service to the public. I believe these form are still available. The ability to make medical decisions became effective by simply filling in the blanks. FOr me, the unusual part of the form was that it named alternate POAs. Generally speaking, a spouse would name each other and if the spouse was unable or unavailable, an alternate was able to make the medical decision. If a client had three children, they could all be named as alternates.
However, I was still of the old school that felt that a POA for business or financial purposes should only name one person. I felt that a POA was like a double edge sword. It could be used for or against the creator. It was very helpful if the creator of the POA was incapacitated and unable to act. But, it could be used against you because the POA had authority to act at any time, not necessarily only if you were unable to act. For example, if the POA authorized the withdrawal of funds from a bank account, the POA could go to your bank and remove your funds at any time. Only a trusted person should be named as a POA. The most trusted person was the spouse.
Several years ago I received similar calls from three different families. Mom had passed away and Dad now has dimentia. Since Mom was the POA for Dad and she was deceased, Dad no longer had a POA. Since he was no longer mentally competent because of the dimentia, he cannot prepare a new POA.
I revised my documents to include alternate POAs for the business and financialPOA. The spouse is named as the initial POA but I now name one or more children as alternates.
Please review your POAs. If you don’t have alternates, you may want to consider revising your documents.
Jim Malinowski


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Surviving Spouse = $1113

Married Spouse = $1360

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