The Importance of Incapacity Planning: Avoiding a Useless Power of Attorney

The Dangers of Free Online Legal Documents

I cannot emphasize the importance of incapacity planning enough as an elder law attorney. You start incapacity planning by creating powers of attorney documents. A power of attorney allows you to designate a trusted individual to make decisions or conduct transactions on your behalf.

What powers can you assign through a power of attorney? You appoint someone to handle your personal finances or business operations. Additionally, you assign the power of your medical decision making to someone.

Sounds great, right? Perhaps even easy. And look, you can create these documents online for free. So why hire an attorney when you can do it yourself?

But hold on there, tiger. Beware of those free online documents. Yes, you might be tempted to download that free form. But, will that be enough to ensure that the document is legally recognized? Important matters are handled quickly? And your specific instructions are followed? Do you even want to take that chance? More importantly, should you?

Financial Power of Attorney

A financial power of attorney is part of incapacity planning. You currently make your financial decisions, right? You pay your bills. You handle your investments.

But, what if you became incapacitated? And, as a result, you no longer could manage your finances?

Hopefully you executed a financial power of attorney before your incapacity. If so, whoever you chose as your agent can handle your finances.

But, what if you used a free online power of attorney form? Are you covered? Let’s see what can happen when you use an online form….

Adam’s Story…

Meet Adam. Adam is 78 years old. His is financial planner mentions the importance of a power of attorney. He advises Adam about the benefits of a power of attorney.

So, Adam contacts a few attorneys. But the cost!

Discouraged, Adam meets his friend, Eve for dinner. Eve tells Adam she used a free online form to create her power of attorney. So, Adam goes home, gets online and viola! He discovers a free legal document on the internet.

This document promises to contain everything he needs to comply with state law. Even better, the document is much shorter than the ones those attorneys had shown Adam. Adam always wondered why legal documents have to be so lengthy and expensive in the first place.

So, Adam downloads and signs the document. He names Eve as his agent.

A week later, Adam has a stroke. He is unable to handle his finances.

So, Eve goes to Adam’s bank to transfer funds. The bank denies her access. But why? Adam executed a power of attorney document. He appointed Eve as his agent.

Unfortunately, the power of attorney doesn’t cover the bank’s requirements. The bank has different forms and rules for powers of attorney documents. Adam didn’t know this.

That free legal legal document fails.

Health Care Power of Attorney and Living Wills

A Health Care Power of Attorney and a Living Will are another component of incapacity planning. These documents govern your medical decisions.

Can’t make medical decisions on your behalf? A Health Care Power of Attorney allows a person of your choosing to make those decisions for you. This document authorizes what you want done regarding your mental and physical health. You can even restrict what treatments can be done for you.

Likewise, a Living Will governs whether or not you want life saving measures taken. And, under what circumstances.

What do we mean by life saving measures? Imagine your heart stops beating? Do you want to be resuscitated?

Imagine you have Covid. The doctors recommend a ventilator. You are expected to recover. Are you OK with the ventilator?

Now imagine you are braindead. The doctors recommend a ventilator. You are not expected to recover. Now are you Ok with a ventilator?

Jill’s Story…

Meet Jill. Jill is a 38 year old waitress. Jill is not married but she is dating Jack. Jack and Jill live together.

One night Jack and Jill decide they need health care powers of attorneys. So, they go online. They find free health care powers of attorney forms. They even find free online living wills. So, they download the documents and sign them.

Two years later, Jill leaves work. On her way home, another vehicle hits Jill in a head on collision. EMTs arrive on the scene. They take Jill to the hospital where doctors determine Jill has a traumatic brain injury. Jill is brain dead. She cannot make decisions for herself.

Jack knows what Jill has expressed in the past about specific treatments and efforts to prolong her life. Jack even even witnessed the online form Jill used for a health care power of attorney. Remember, Jack was by her side when Jill downloaded the form.

But, Jill’s family members contest the document. The doctors won’t listen without more specific advanced health care directives and a signed HIPAA release form. Everyone is angry and upset. Another legal online document failure.

The Dangers of Online Legal Documents

But wait, aren’t these online documents approved for use by the public? How can they be insufficient when you need to use them?

Unfortunately, online documents usually only offer general information for the most basic needs. With so many variables in finances, business, and medical situations, the language is not specific enough to address the unique problem. 

An estate planning attorney creates effective powers of attorney. These documents contain wording regarding several circumstances. These documents refer to other critical documents like living wills and trusts. Additional details instruct the person chosen to act on your behalf when dealing with decisions regarding banking and medical institutions or personnel. For example, it may permit them to set up another trust, reorganize assets, open and close banking or investment accounts, and require health care professionals to comply with your medical wishes. 

Yes, a free online power of document saves you money. However, is saving money worth the cost of valuable time, money, and frustration? You save money but you could end up with a useless document. Are you happy with that? Hopefully not!

An effective power of attorney covers many different legal considerations. An estate planning attorney covers common pitfalls that render do it yourself powers of attorney ineffective. Your attorney discusses options to avoid those pitfalls.

Powers of attorney are effective. But, they need to be done correctly.

Consult with an attorney to ensure you are prepared to handle any situation.