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When are My Powers of Attorney Active?

Powers of attorney are often drafted differently by different professionals. In our office, we draft our powers of attorney to be effective immediately so that the principal is authorizing the power to be used by their agent now. However, we do not have the agent sign the acknowledgment pages, acknowledging that they are going to act in the best interest of the principal and not steal from the principal and not comingle assets of the principal, and only have them do that at the time when they need to act.

At Bellomo & Associates, we have a document signed by the principal, telling our firm only to give out the originals and to only have the agent sign the acknowledgment when and if the agent actually needs to use them, which would only occur if the principal instructs our firm to give the documents to the agent, or the principal is incapacitated. Yes, we do potentially take on liability because it is up to us to ensure that the agent has not received the documents before they are supposed to, but this is the mechanism that protects that the principle that the agent will not have the documents prior to when they actually need them.

Over 20 years of practice I have found that agents always want to do the right thing for the principal and always want to be there for the person that they are acting for. In the cases that I have found that an agent has taken advantage of their power, it almost is always a situation of the agent becoming desperate for one reason or another, and I have always said “desperate people do desperate things”. It is mainly for this reason that we keep the originals of the documents protected in our office so that the agents do not have them to be subjected to the whims of a desperate situation.

In the event that the agents need or want to use the documents, they will have to sign the acknowledgment pagers prior to using the document. We often receive calls from agents wanting to know why they did not sign the acknowledgements yet, and our answer is because you do not need to act on behalf of the principal yet because he or she is still able and willing to do it themselves.

While there is certainly no perfect answer to the best way to handle this situation, we believe that our solution provides the most effective way to get the document in place, but in such a way that it’s still protected as much as possible until it needs to be used.

It is important that you receive advice from a professional about the best way for you and your family to execute into a power of attorney and whether or not the agent should sign the acknowledgments now or only when and if they need to use them.

If you are looking for advice in regards to powers of attorney, please call our office at 717-845-5390 or click the link here and we will contact you.

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What is the difference between a living will and a healthcare power of attorney?

This is the question that I receive at least once a week in my estate planning and elder law practice.  Taken together, a Living Will and a Healthcare Power of Attorney, are an Advanced Healthcare Directive.  Taken individually a Healthcare Power of Attorney allows an individual to make healthcare decisions on another person’s behalf.  A Living Will is a document that only kicks in when a person is “end-stage medical” which means that two qualified physicians have put in writing that the individual has no realistic hope of recovery.  That they will always remain permanently unconscious, vegetative, comatose, and/or terminally ill.  If the document has both of these items in them together, then it is considered an Advanced Healthcare Directive.  

I am always urging people to ensure that they have these documents in place.  My main reason for feeling that way is that I believe that it is imperative to take the burden off a loved one, to spare them from having to “pull the plug” on their loved one.  My experience at my law practice is that when a person’s wishes are in writing regarding what they want or do not want should something to happen, that others are much more comfortable in allowing that decision to stand if they don’t personally have to make it. 

 I remember several years ago a spouse who recently lost her husband came into my office sobbing because her husband did not have an Advanced Healthcare Directive and she did not know exactly what he wanted.  I reminded her that he repeated numerous times in my office in front of her that he did not want to live that way, and that if there is no hope there is no reason to live.  However, all that she could know or remember is that she pulled the plug.  She conveniently did not remember all of those conversations because, in her mind, she told the doctor to pull the plug, and within seven minutes her husband was no longer with her.  There was absolutely no consoling or helping her feel better about her choice.  And, although I am 100% confident she did exactly what her husband wanted because she was the one who had to make the decision she always wonders and always regretted it.  Putting your wishes in writing will allow your family members to be 100% certain that they were your wishes and that they are merely following through on what you wanted, not what they think you want, or making them play “God”.  It is imperative that everyone over the age of 18 have a Healthcare Power of Attorney as well as a Living Will.  

If we can be of any assistance or answer any questions while you make decisions about yourself and your family, please give us a call at 717-845-5390 or click the link here and we will contact you.