By Dennison Keller, Owner and Managing Partner, The Law Practice of Dennison Keller, LLC
“We need to set up a new will.” I hear those words every single week across my desk from clients at our law office. But rare is the day when clients come in seeking, first and foremost, a new financial power of attorney.
A financial power of attorney is a document in which you name another individual to handle your money affairs. It is the single most important document you can have in your estate planning arsenal.
While a will is important, if you pass away without one, your assets will flow down to your next-of-kin. Health care advance directives, including a health care power of attorney and living, will, are useful as well. But if you have never signed them, medical personnel often look to your closest relatives for guidance. No such bailout or substitute exists for a lack of a financial power of attorney.
If you become incapacitated, the financial institutions holding accounts in your name simply cannot work with your family members, even your spouse, if he or she is not on the account. No one will be able to cash in your assets to pay for care or write checks for you. The only option at that point will be for your loved one to pursue a guardianship, which is an expensive and cumbersome court process – one that will render your health condition and finances as public records.
It is also important to understand that not all power of attorney documents are created equally. At every one of our initial consultations, I read through the potential client’s existing POA. In probably 90% of the cases, the document in place lacks critical provisions that are necessary to navigate the elder care continuum.
Does your power of attorney document have a gifting authority which allows your agent to make gifts of your assets while you are still alive? What about a trust power, which gives your agent the ability to create and establish a special needs trust should you become incapacitated? These are dangerous powers, no doubt because a dishonorable agent could use these them to take advantage and steal from you. However, if you have loved ones that are truly trustworthy, powers such as these become extremely important in protecting assets and quality of life if you require Medicaid or a nursing home stay in the future.
The age of your existing power of attorney document could also present a problem. Banks and financial institutions are frequently reluctant to honor a POA because they are fearful the agent is up to no good and trying to steal from their client. That is a noble protection, but it does your spouse or child no favors if he or she is legitimately trying to cash out an asset to pay for your care. “This document is too old and we are not sure if it is still in force,” is a frequent excuse we hear from financial institutions who are refusing to honor an otherwise valid POA.
Do yourself and your family a favor. Meet with a competent elder law attorney and tell that counselor, “I need to set up a new financial power of attorney.” It could be the most important step you take to ensure your that loved ones can pay for the care you need – and protect your assets while doing it!
Dennison Keller is owner and managing member of The Law Practice of Dennison Keller, LLC with offices in Ohio and Kentucky. He is the President-Elect of the Life Care Planning Law Firm Association. He also serves on the board and is the immediate Past President of the Ohio Forum of Estate Planning Attorneys. Dennison is a frequent local and national lecturer on the topics of elder law, life care planning, Medicaid planning, veterans’ benefits, and estate planning. He also teaches an annual course on Elder Law at the Osher Lifelong Learning Institute, a continuing education program offered in conjunction with the University of Cincinnati.
This column is offered for informational purposes only and does not constitute an endorsement of the author or any company’s products or services by the Ohio Department of Aging.