One of the most common misunderstandings we hear when talking about estate or incapacity planning is this: “I’ll just get a Power of Attorney if something ever happens.”
It sounds reasonable, but it’s not how the law works.
A Power of Attorney (POA) is a tool that can only be used while you still have capacity. In other words, you must be mentally competent when you sign it and able to understand what you’re authorizing your agent (the person you choose) to do on your behalf.
Once that capacity is lost, due to illness, injury, or age-related decline, a Power of Attorney cannot be created. At that point, the only option left is often a guardianship or conservatorship, which requires a court process and can be both time-consuming and costly.
Before vs. After: How These Tools Work
Power of Attorney (POA) A Power of Attorney allows you to choose someone you trust, often a spouse, child, or close friend, to manage your affairs if you’re unable to do so. There are two main types:
- Healthcare Power of Attorney: Makes medical decisions on your behalf.
- Financial Power of Attorney: Handles banking, property, and financial matters.
These documents can be as broad or as specific as you want. You can set them up so they take effect immediately or only if you become incapacitated. Most importantly, you are in control when the documents are signed. You decide who will act and what authority they have.
Guardianship and Conservatorship When someone loses the ability to make decisions and has not executed a valid POA, their loved ones must turn to the court for help, meaning they must apply through the court to be appointed. This involves a lengthy process involving several attorneys typically.
- A guardian is appointed to make decisions about personal and healthcare matters.
- A conservator is appointed to manage financial affairs.
These appointments are made only after capacity has been lost and typically require medical evaluations, petitions to the probate court, and sometimes even contested hearings between family members. The court decides who will serve the incapacitated person, not them and not you.
Why This Matters
Planning ahead with Powers of Attorney gives you control, privacy, and peace of mind. Waiting until “something comes up” means your loved ones may face unnecessary stress, delays, and expense at an already difficult time.
We’ve seen many families caught off guard, assuming they could “just get a POA” when a crisis hits, only to learn it’s too late. Without valid Powers of Attorney, even a spouse may be unable to access accounts or make critical healthcare decisions until the court steps in.
Takeaway
Think of a Power of Attorney as a “before” tool, one you create while you’re healthy and capable of protecting your wishes later. Guardianship and conservatorship are “after” tools, necessary only when that opportunity has passed.
If you don’t yet have your Powers of Attorney in place, now is the time to act, not after capacity becomes an issue.
At A Business Law Firm, we help clients prepare these essential documents as part of a comprehensive estate plan that protects both your independence and your loved ones. Contact us if you have questions or need help having these documents created.
