Updated: Jun 19
As you age, it's important to plan for the possibility of incapacity. A power of attorney (POA) is a legal document that gives someone you trust the authority to make decisions on your behalf if you become unable to do so yourself. This can include banking and bills, account maintenance, and property and real estate transactions.
Kansas has two types of POAs: durable and springing. A durable POA takes effect immediately and remains in force even if you become incapacitated. A springing POA, on the other hand, does not take effect until you are declared incapacitated by a doctor.
My general rule of thumb--and what I advise most clients--is that seniors should absolutely have a POA and should probably choose a durable POA instead of a springing POA. Here are a few reasons why:
Some seniors need help before they lose capacity. Recently, we have learned that reduced financial awareness can be an early sign of dementia--but a person can live for years with reduced financial capacity before actually meeting the medical criteria required for a springing POA or guardianship. A durable POA will allow the flexibility to have an agent help you with finances when needed.
A durable POA gives you peace of mind. Knowing that you have someone you trust who can make decisions on your behalf if you become incapacitated can provide peace of mind. This is especially important if you have medical conditions that could lead to incapacity, such as Alzheimer's disease or dementia. And, having some time to watch the person in the POA role will reassure you that you made the right choice.
A durable POA can save time and money. If you become incapacitated and do not have a POA, your family may have to go through the court system to appoint a guardian or conservator. This can be a lengthy and expensive process. It may also result in your having a guardian or conservator who is not the person you would have chosen! A durable POA eliminates the need for this process, which can save your family time and money.
A durable POA is more flexible. A springing POA only takes effect if you are declared incapacitated by a doctor. This can be difficult to do, as there is no single definition of incapacity. (It can also be a source of disagreement between loved ones.) A durable POA, on the other hand, gives you the flexibility to name the agent and grant or limit powers of your own choosing, in your own time.
If you are a senior in Kansas, it is important to speak with me or another attorney about creating a durable POA. A durable POA is an important tool that can help you protect your interests and ensure that your wishes are carried out if you become incapacitated.
Here are some additional things to keep in mind when creating a durable POA:
Choose your agent carefully. The person you choose to be your agent should be someone you trust implicitly. They should be someone who is willing and able to make decisions on your behalf. Remember, this person has access to your entire financial life, your property, and your secrets.
Be specific about your wishes. Your POA should clearly state what powers you are giving to your agent. This includes financial matters, property matters,, and other personal decisions.
Review your POA periodically. Your circumstances may change over time, so it is important to review your POA periodically to make sure it still reflects your wishes. You must make any amendments to your POA while you still have capacity to do so.
A durable POA can provide peace of mind and protection for you and your loved ones. If you are a senior in Kansas, it is important to speak with an attorney about creating a durable POA along with your medical proxy.
Special Considerations for Younger Kansans
After this plug for durable POA's, you might be wondering why we have the option of the springing type. Consider the different life stages: a person who is young, married, and has few financial obligations may not need to prepare right now for the absolute worst case scenario. They also might want to exercise more control over their financial accounts as they grow and build their portfolio and learn who they can trust in adulthood. An estate plan should be reviewed at every major life change, and perhaps you have not reached a stage where a durable POA is the right choice.
Also consider that as your overall risk of injury or incapacity increases--such as high-risk jobs/sports, known medical disorders, or a complicated family structure--your decision may lean toward a durable POA instead of a springing one. I am happy to help you talk through your individual circumstances to land on the right document.
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