Powers of Attorney and Guardianship
Powers of Attorney
A Power of Attorney (“POA”) is a written instrument which allows the person executing the document (“principal”) to appoint another person (“agent”) to make health care or financial decisions on the principal’s behalf.
There are two types of POAs – one for health care, and one for finances. In Wisconsin, these must be drafted and executed as separate instruments; one document cannot serve as both a financial and health care POA.
Financial Powers of Attorney
The financial power of attorney – which is the document that allows you to appoint another person to manage your finances and assets – is often referred to as a “general durable power of attorney.”
A financial POA can be drafted as a “springing document.” A springing POA activates only in the event that the person executing it becomes legally incapable of making his or her own financial decisions. Unmarried individuals typically opt for a springing POA. Conversely, married couples frequently will execute immediately effective POAs naming each other as their financial agents because couples may find it convenient to allow one spouse to act for both regarding financial matters.
This convenience factor aside, however, the primary purpose of POA is to avoid the need for a guardianship proceeding in the event of the principal’s incapacity.
When an individual loses the capacity to make his or her own financial decisions, perhaps as a result of the onset of dementia or traumatic injury, another individual must be appointed to authorize any decisions or actions regarding the assets of the incapacitated individual. Executing a GD POA allows you to nominate, while you are healthy and of sound mind, the person you would want to act on your behalf if you become incapacitated.
In the absence of a well drafted general durable power of attorney (“GD POA”), the only way to appoint such an individual is through a guardianship action. Guardianship is a court process that requires at least one court hearing and cannot be completed without involving attorneys and medical professionals. The guardianship process is typically expensive and time consuming and can cause a great deal of heartache, stress and difficulty for the incapacitated individual and their family members. Anyone who has been involved with a guardianship action will appreciate that creating a POA while you are healthy is one of the most important and beneficial aspects of the lifetime and estate planning process.
Health Care Powers of Attorney
Unlike GD POAs, health care powers of attorney (“HC POAs”) are always “springing” – in other words, the nominated agent only has authority to make health care decisions on behalf of the principal once the principal has been declared legally incapacitated. A well drafted HC POA will not only appoint a health care agent, but also document your wishes regarding:
(1) Whether and to what extent you wish to receive extraordinary or artificial life
support measures in the event of terminal illness or a persistent vegetative state.
(2) Whether to be an organ donor.
(3) Whether you want your agent to have the authority to withhold or withdraw feeding tubes.
(4) Whether you want your agent to have the authority to admit the principal to a nursing home or group home if needed.
It is important to note that GD and HC POAs terminate upon the death of the principal, so POAs are not at all useful with regards to planning for what happens to your estate after you are gone. To learn more about your options for controlling the disposition of your estate, see the estate planning section of our website.
Unfortunately, sometimes a loved one who has not yet executed GD and HC POAs does become incapacitated and a guardianship action is necessary to appoint someone to make financial and healthcare decisions on their behalf. When these circumstances arise, it is important to retain the assistance of experienced legal counsel to help you navigate the complex guardianship process. If you find yourself needing to petition to be appointed as a loved one’s guardian, or if someone else has filed a guardianship petition that you believe needs to be challenged, please contact Moertl, Wilkins & Campbell, S.C. to discuss your situation with an experienced guardianship attorney.