Most estate plan packages include a Financial Power of Attorney (FPOA) and Advance Healthcare Directive (AHCD). These documents may be powerful, but they have their limitations. Understanding the role of each document in your estate plan is crucial to ensuring that the documents may be used properly and enforced if necessary.
Banks are absolute sticklers for rules, particularly when it comes to allowing a person to access an account through the use of an FPOA. If the accounts are properly transferred into trust, the terms controlling the succession of trustees will determine when and how the successor trustee gains access to the accounts. However, when accounts are not held in trust, the FPOA is useful to allow access to your accounts.
FPOAs come in a variety of flavors; immediate, durable, and springing durable FPOAs are all common, but serve somewhat different purposes. The VA also has its own POA. Although each FPOA allows you to name a person to take control over non-trust assets, an immediate FPOA is valid when signed and until a designated time or when you are no longer able to make decisions for yourself. It is commonly used for one spouse to sign for both spouses in a home purchase, for example. A durable power of attorney lasts even after incapacity and is therefore more common in estate plans. The durable FPOA may be immediate (i.e. effective upon execution and through incapacity) or springing (i.e. effective only upon incapacity). Which will be more useful for you may depend on who you designate as your agent and the powers they are given.
Banks are required to allow the use of an FPOA (even if not on their form) and may be held liable for failing to do so. However, it is worth verifying that your FPOA contains certain provisions, such as allowing the agent to recover costs from the bank when it declines to accept an FPOA. Additionally, if you have a springing durable FPOA, then it is important to verify that you understand how it becomes effective. It is common for a springing durable FPOA to require certificates of incapacity from physicians in order to become effective. These certificates are then presented to the bank.
AHCDs, on the other hand, function very differently. Although they are commonly thought of as “health care powers of attorney,” or “living wills,” they are neither of these things. Both the terms “power of attorney” and “will” imply that the document is binding in all instances. However, the document’s primary function is for you to designate a person who may make healthcare decisions for you when you are unable to do so. The remaining provisions are not a set of limited powers, per se. Instead, they exist to make your health preferences known to your agent so that he or she may use those preferences to guide their decisions. For these reasons, you should take care to choose a healthcare agent who understands your wishes and is willing to follow through with the choices you have made. For example, it would be unwise to choose an agent who is religiously against DNR types of provisions if your AHCD contains them.
In any estate plan, the stars of the show are typically the trust or will. I recommend reviewing these documents regularly to verify that they continue to represent your wishes. However, your FPOA and AHCD are extremely important documents when they are needed and great care should be taken to verify that they, too, continue to represent your wishes!