The Importance of a Power of Attorney (Part One)

Nicole LivingstonBy: Nicole T. Livingston – Associate Attorney – Elville and Associates, P.C.

As an estate planning attorney, I cannot stress enough the importance of having a legal document called a power of attorney.   A power of attorney is a legal document where you name a person to step into your shoes to handle your financial and medical affairs if you are unable to do so yourself.   These are usually multiple documents.   Typically, you have one set of documents to handle financial matters and a second set of documents for medical affairs.  Generally, the medical documents are not as lengthy, because you do not want your physician flipping through twenty pages to understand your medical wishes.

The General Durable Power of Attorney and the Maryland Statutory Form Personal Financial Power of Attorney are the two legal documents you should have regarding your financial matters.   The General Durable is a misnomer as this document is rather detailed and lengthy.   In Maryland, you need to specify which actions your agent is allowed to handle for you.   Examples are allowing your agent to go to the post office to change your mailing address, filing your tax returns, liquidating your business, accessing your digital accounts, or accessing your bank accounts to pay your bills.  You decide how much power you want your agent to have or not have.  Your agent is the person who you name to handle these matters on your behalf.  The Maryland Statutory Form Personal Financial Power of Attorney is a document created by the Maryland legislature and cannot be changed.   You need to use the exact form to be in compliance with the statute.   When you sign this Statutory Form, a bank cannot refuse to honor the document on its face.  Meaning, at the time your agent presents this document to the bank, the bank cannot refuse to honor it due to the length of time (possibly more than three or five years) from when the power of attorney was originally signed.   This was a common problem before the statute was passed.

The second set of documents you should have pertains to health care matters.  You should have an Advance Medical Directive which consists of a Health Care Power of Attorney and a Living Will.  The Health Care Power of Attorney allows you to name a person to make medical decisions for you if you cannot do so yourself.  If possible, you should also name a back up if your first choice is not available at that time.  The Living Will is a document that allows you to make choices regarding end of life decisions.  You can decide when you are at the end of life whether or not you want to remain on a ventilator or have a feeding tube.   In addition, you need to make your wishes known regarding pain management, organ donation, and final disposition of your body.   These are often difficult choices to make.   Often, the decisions you make now makes it easier for the people you leave behind.

In my next blog, I will discuss questions regarding who may act as your agent and whether or not they should have these powers immediately or only upon your incapacity.   Remember, powers of attorney only work for you while you are alive.   The powers in the document end at your death.