A Primer on the Importance of Executing a Power of Attorney and Advance Medical Directive
We often meet with families who are facing issues associated with increased care needs of a loved one. In many of these situations, the family indicates they intended to meet with an attorney for years to develop an estate plan, but that they never got around to it. One of the most common misconceptions is that family members will be able to assist their loved one when they need assistance. However, pursuant to law, the ability to act on behalf of another adult is very limited. At some point in time, an individual may no longer have the capacity to execute estate planning documents, and it is important to know what authority you have, what course of action is necessary to obtain additional authority, and what the defaults are under the law and how those defaults may not be consistent with your wishes.
POWER OF ATTORNEY
A Power of Attorney designates an agent to act on your behalf for financial matters. Your agent has a duty to act within the scope of authority granted to him within the document. Aside from a joint account holder who may continue to pay bills on your behalf, if no agent has been designated under a Power of Attorney, your loved ones will be not able to act on your behalf.* To remedy that situation, the Court must appoint a Conservator to act on an incapacitated person’s behalf. It is important to note that since the Court has no knowledge of the individual you would want to serve as an agent, they may not appoint the individual you would have wanted to manage your finances. Furthermore, since the Court will want to ensure the individual is an appropriate person to handle your financial affairs, a loved one may be disqualified from serving as Conservator due to things such as criminal history or poor credit.
An Advance Medical Directive designates an agent to act with regard to your personal affairs, including, but not limited to, the ability to make medical decisions consistent with the parameters outlined in the document. In the event an individual fails to nominate a medical agent, the Virginia Code authorizes various individuals, in order of priority, to make medical decisions upon an individual’s incapacitation. It is important to understand that the person to whom this authority is delegated may not be consistent with your wishes, and that all persons within the same order of priority will be equally able to make decisions. While disputes over personal care authority most commonly occur in blended families, most often in cases where a biological child does not want a stepparent making decisions, issues arise in a variety of circumstances. When issues do arise, or when additional authority is needed, the Court may need to appoint a Guardian.
The attorneys at the Hook Law Center assist individuals in developing comprehensive estate plans and navigating issues associated with failing to plan. To ensure your affairs are in order, that you are acting within the authority granted, or to discuss alternatives to estate planning documents, call us to schedule a consultation.
*It is important to note that unless you intend for your joint account holder to inherit that account upon your death, you should indicate on the account that the account is held jointly without survivorship. This is another common mistake we see in estate planning.
Hook Law Center: Kit Kat, do you have some feel-good stories that you’d like to tell us about?
Kit Kat: I sure do! Every once in a while, things do turn out so wonderfully! Take, for example, the story of Murphy, a kitten, who was rescued from the conveyor belt of a recycling plant in Galt, CA (90 miles north of San Francisco) recently. Somehow the little, white-pawed/tabby kitten must have gotten scooped up into the trash headed for recycling. It was actually on the conveyor belt when an alert worker named Tony Miranda noticed her, and rescued her. Murphy was really small from her picture in the newspaper. I would guess she weighed between 1-2 pounds. The kitten was quickly adopted and given the name Murphy by another worker. She was named Murphy after the nickname of the recycling plant (‘The Murph’) where she was found.
Then, there’s another story I love to tell. I have some good news to report about Bei Bei, the panda twin that was born last August at the National Zoo in Washington, D.C. His brother, did not survive, but Bei Bei is thriving. He is four months old and weighs 17.5 pounds—quite a gain from his birth weight of 4 ounces! His caretakers say he is gaining about a pound a week. He weighs more than either of his siblings when they were his age. He also is reaching his developmental milestones right on schedule. The pubic will get to meet Bei Bei officially on January 16, 2016. (The Associated Press as printed in the The Virginian-Pilot, December 17, 2015 p. 12)
Finally, I’d like to report that my parents are fostering 2 new kittens that are about 9 weeks old now. Their daughter, Lauren, will start taking care of them in June when she moves to an apartment which allows pets. They were found wandering near the Chesapeake Bay Bridge Tunnel in mid-November. Some friends took care of them in the interim before coming to us. Lauren has named the female, Charlotte, and the male, Scout. They are adorable. Charlotte is a tortoise-shell tabby, and Scout is all grey! They are quite a pair! They really like me. I don’t think they have had much interaction with a male cat before. I consider them my own.
- January 14th, 2016 – Shannon Laymon-Pecoraro will be speaking at The Terrace at Beth Shalom Village in Virginia Beach for their residents.
- January 20th, 2016 – Andrew H. Hook and Elizabeth Q. Boehmcke will be speaking on “Protecting Assets from Nursing Homes and Medicaid” at Crowne Plaza Hotel, 4453 Bonney Road, Virginia Beach, VA 23462.
- January 21st, 2016 – Andrew H. Hook and Elizabeth Q. Boehmcke will be speaking on “Protecting Assets from Nursing Homes and Medicaid” at Hilton Gardin Inn, 5921 Harbour View Blvd., Suffolk, VA 23435.
- January 22nd, 2016 – 126th Annual Meeting of the Virginia Bar Association in Williamsburg. Andrew H. Hook, Natalie Hale, and Stephanie Washington will be presenting a CLE on “Keeping Mom (or Dad) at Home Aging in Place With CBC, PACE, VA Benefits, and Reverse Mortgages.”
- February 15th, 2016 – Stephan J. Lipskis will be speaking on “Protecting the Money You Leave to Your Children from Their Divorce” at Crowne Plaza Hotel, 4453 Bonney Road, Virginia Beach, VA 23462.
- February 16th, 2016 – Shannon Laymon-Pecoraro is presenting on Veteran’s Aid and Attendance again with the Crossings at Independence at 10am. Crowne Plaza Hotel, 4453 Bonney Road, Virginia Beach, VA 23462.
- February 18th, 2016 – Stephan J. Lipskis will be speaking on “Protecting the Money You Leave to Your Children from Their Divorce” at Hilton Gardin Inn, 5921 Harbour View Blvd., Suffolk, VA 23435.
- February 20th, 2016 – Andrew H. Hook is traveling to Charlottesville for the 2016 UnProgram with VAELA. He will be giving a presentation on Advance Medicaid Planning Strategies, as well as addressing nuances of gifting by Power of Attorney.
- February 23rd, 2016 – Andrew H. Hook will be speaking on Long-Term Care Planning at The Crossings of Harbour View at 10AM.
- March 5th, 2016 – Andrew H. Hook will be speaking at the SNA Meeting in Hawaii on “Residential Planning for the Adult Disabled Child of an Elder or Decedent.”
- March 14th, 2016 – Elizabeth Q. Boehmcke will be speaking on “Protecting Your Children’s Inheritance” at Crowne Plaza Hotel, 4453 Bonney Road, Virginia Beach, VA 23462.
- March 15th, 2016 – Elizabeth Q. Boehmcke will be speaking on “Protecting Your Children’s Inheritance” at Hilton Gardin Inn, 5921 Harbour View Blvd., Suffolk, VA 23435.
- March 16th, 2016 – Andrew H. Hook will be speaking at the Hampton Roads Chapter Enrollment Society Meeting about Trust and Decedent’s Estate taxation issues.
- March 24th, 2016 – Andrew H. Hook will be speaking on Long-Term Care Planning at The Crossings of Harbour View at 10AM.
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