If something happened to you, it would be nice to know that someone you knew and trusted was handling your affairs and in a manner that you specified. In the State of Kansas, the way to make sure this happens is by executing a durable power of attorney.

     A Durable Power of Attorney may be the most important of all legal documents. This legal document gives another person the right to do certain things for the maker of the Durable Power of Attorney. What those things are depends upon what the Durable Power of Attorney says. A person giving a Durable Power of Attorney can make it very broad or can limit the Power to certain acts.

Power of Attorney vs. Durable Power of Attorney

      A Power of Attorney can be used to give another person the right to sell a car, home, or other property or handle any legal affair you want to assign them. A “General” Power of Attorney gives a person very broad powers to handle their legal affairs. People often do General Powers of Attorney to plan ahead for the day when they may not be able to take care of things themselves.

      Normal Powers of Attorney terminate if and when the “principal” the person giving away the power – becomes unable to act or do. For example, if a person is in a coma or has Alzheimers, the Powers given away end. To remedy this problem, the law created a “Durable Power of Attorney” that remains effective even if a person becomes incapacitated.

     Durable Powers of Attorney can be divided into two general categories: Durable Power of Attorney for Health Care Decisions and Durable Powers of Attorney for Financial Matters.

     Durable Power of Attorney for Health Care Decisions authorizes someone you name (your “agent” or “Attorney-in-fact”) to make health care decisions for you in the event you are unable to speak for yourself. Health care decisions include the power to consent, refuse consent or withdraw consent to any type of medical care, treatment, service or procedure. If the document you can give specific instructions regarding your health care which will require the agent to make decisions in accordance with your direction.

Living Wills

     Another legal document to consider executing in relationships to your health is a living will.

     A living will is a legal document that a person uses to make known his or her wishes regarding life prolonging medical treatments. It can also be referred to as an advance directive, health care directive, or a physician’s directive. A living will should not be confused with a living trust, which is a mechanism for holding and distributing a person’s assets to avoid probate. A living will does not become effective unless you are incapacitated; until then you’ll be able to say what treatments you do or don’t want.

     They usually require a certification by your doctor and another doctor that you are either suffering from a terminal illness or permanently unconscious before they become effective as well. This means that if you suffer a heart attack, for example, but otherwise do not have any terminal illness and are not permanently unconscious, a living will does not have any effect. You would still be resuscitated, even if you had a living will indicating that you don’t want life prolonging procedures. A living will is only used when your ultimate recovery is hopeless.

Durable Power of Attorney for Finances

     Creating a financial power of attorney is a good idea for almost everyone with property or an income. It’s particularly important; however, if you fear that health problems may make it impossible for you to handle your financial matters. Making a durable power of attorney for finances ensures that someone you trust (usually called your “agent”) will be on hand to manage the many practical, financial tasks that will arise if you become incapacitated. For example, bills must be paid, bank deposits must be made, and someone must handle insurance and benefits paperwork.

     Many other matters may need attention as well, from handling property repairs to managing investments or a small business. In most cases, a durable power of attorney for finances is the best way to take care of tasks like these.

Even if You’re Married You Need One

     You may not think that you need a durable power of attorney for finances if you’re married. Yes, your spouse can pay bills from a joint banking account, but there are significant limits, however, on your spouse’s right to sell property owned by both of you. When it comes to property that belongs only to you, your spouse has no legal authority without a durable power of attorney. You can run into the same problems with property and accounts held in Joint tenancy – another way that more than one person can own property together.

Avoiding Conservatorship or Guardianship Proceedings

     If you don’t have a durable power of attorney and you become incapacitated, your relatives or other loved ones will have to ask a judge to name someone to manage your financial affairs. Depending on where you live, the person appointed to manage your finances may be called a conservator, guardian of the estate, committee, or curator.

     Conservatorship or guardianship proceedings can be expensive and embarrassing. Your loved ones must ask the court to rule that you cannot take care of your own affairs — a public airing of a very private matter. Court proceedings are matters of public record; in some places, a notice may even be published in a local newspaper. And if relatives fight over who is to be the conservator or guardian, the proceedings will surely become even more disagreeable, sometimes downright nasty. All of this causes costs to mount up, especially if lawyers must be hired.

How to Make Living Wills and Durable Power of Attorney

     The Kansas legislature has adopted statutory forms for both the living will and the Durable Power of Attorney for Health Care. All hospitals have them and they typically ask you to consider signing them before you have even the most minor of their services. You can also find templates for both documents online.

     Preparing a Durable Power of Attorney for Finances isn’t as straight forward. You may feel comfortable using a template you find online, but for individuals with lots of assets, it is definitely worth securing the services of an attorney. A financial power of attorney can be drafted so that it goes into effect as soon as you sign it. (Many spouses have active financial powers of attorney for each other in case something happens to one of them — or for when one spouse is out of town.)

Leave a comment

Your email address will not be published.