A power of attorney is one of the most critical documents you can have. A recent study showed that only 33% of Americans over the age of 55 have a durable power of attorney in place. Tragedy or illness can strike at any moment. Obtaining a power of attorney—or POA as it is often called—is a proactive way to save you and your family a lot of stress and heartache in the event that you become incapacitated, or otherwise unable to make decisions for yourself.
A POA allows you to designate an individual—or several individuals—who could take control of your assets, conduct legal transactions, and make decisions on your behalf if you were unable to do so. However, without this document in place, things can quickly become complicated in the event that you become incapacitated.
Your Family May Have To Apply for Guardianship of Your Children
Without a proper POA in place, your family (yes, even your spouse) may have to apply for guardianship with the courts in order to make decisions on your behalf. This can be a costly process, and could take several months to complete. However, time is often of the essence in situations where a parent becomes incapacitated. You can avoid a problematic situation by having the proper documents in place.
You Could End Up With Major Financial Problems
Having the proper POA in place would allow you to designate an individual to step in and handle your bills—such as your mortgage, insurance, etc.—on your behalf. Without a POA in place, bills could potentially go unpaid, which could result in bad credit, lapse of insurance coverage (which is needed more than ever during these times), foreclosure, and even being forced into bankruptcy.
You Could Be Denied Medicaid
If you are being sent to a nursing home in need of long-term care, it is imperative that you have Medicaid in place to help pay for care. Nursing home care in Alabama costs, on average, $266/day. If you are incapacitated and unable to make medical decisions for yourself—and have not already applied and been accepted to receive Medicaid—it is vital that you have a POA in place. The Medicaid application requires copious amounts of documentation and records. A POA will grant a trusted individual with the permission they need to access these documents and records. If no one is able to access these important documents and records, your application to Medicaid may be denied..
Your Loved Ones Could Be Unable to Access Your Medical Records
In order for your designated POA to gain access to your medical records, you will need the POA to include an authorized Health Insurance Portability and Accountability Act (HIPAA) form. With a HIPAA authorization on file, your named POA will be able to obtain all of your medical records, as well as oversee your treatment and care. This can be critical when needing to transfer medical records to new providers or specialists. However, without this form, not only would the designated POA be unable to receive your medical records, but some doctors will refuse to release sensitive medical information, even with a POA in place!
You May Not Be Able to Transfer Assets
There are several circumstances where an estate planning attorney may recommend transferring assets out of an incapacitated person’s name. For example, if you are incapacitated and in the nursing home for an extended period of time, and your designated POA is applying for Medicaid on your behalf. If you have a POA in place, he or she can transfer assets as recommended by your estate planning attorney in order to prepare your estate for the Medicaid application. However, without this POA in place, no one would be able to transfer assets, and—therefore—your Medicaid application could be denied.
While many of the situations that require a power of attorney are less than ideal and can be stressful in and of themselves, having a plan in place before it’s needed can make the process much easier on your family and friends.
If you have questions about a Power of Attorney or want to include one in your estate plan, then contact Miller Estate & Elder Law at (256) 251-2137 or register for one of our free estate planning workshops.