Helping your client understand a power of attorney.

Over the last few years, services offered by accountants and the services demanded by clients of accountants have greatly expanded. Today, it is often just as likely clients will seek help in regard to financial planning as they are to seek help in the preparation of financial statements. As clients develop trust in their accountants' judgment, clients even come to accountants for suggestions and support when they are faced with personal problems. As the population of the United States ages, many of these personal problems concern financial decisions that affect the health care of the clients, their dependents, spouses or parents.

Today, clients may ask an accountant questions such as "If my mother becomes incapacitated, can I pay her bills?" "Can I cash my spouse's check?" "My father is in the hospital. Do I have the right to decide if his life support system can be turned off?." Answers to these questions have legal and financial implications, but unless an accountant is also a licensed attorney, an accountant cannot give legal advice. However, an accountant can help a client understand many of the commonly used legal terms. Moreover, accountants can use certain legal procedures to help clients resolve the financial aspects associated with these questions.

One of the most commonly used legal procedure that addresses these questions is known as a "power of attorney." Nearly all accountants at some point in their careers will be faced with a situation in which the proper advice for the client is to establish a power of attorney. The purpose of this paper is to provide an accountant with a basic understanding of what a power of attorney is, to explain how a client may establish such a power, and to examine some of the problems that may occur with a power of attorney.

All states have some form of a power of attorney, but many states have unique laws in regard to such powers. Therefore, our discussion here is in general terms and does not specifically apply to any particular state. When establishing a power of attorney, the client must ensure that the specific laws of his or her state are followed, which may require the assistance of an attorney.

Background

The power of attorney has been around for decades. Originally, the power of attorney was given to an agent (i.e., attorney in fact) to act for the principal to do a designated task. For example, an attorney in fact would be appointed to pay the principal's bills while the principal was out of the country. Upon the principal's return, the power of attorney ended. The power of attorney also permitted the agent to handle the principal's financial affairs when the principal became incapacitated. Initially, powers of attorney were used for financial reasons.

Today, because of changing family units, complex health reimbursement arrangements, extensive treatment options, and the maintenance of life possibilities, a power of attorney is more often needed for health care reasons than for financial reasons. As a result, over the last few years, states have created a new type of power of attorney, the durable power of attorney for health care, to address the special needs that health care decisions require.

Four Types of Powers of Attorney

According to Black's Law Dictionary, a power of attorney is "an instrument in writing whereby one person, as principal, appoints another as his agent and confers authority to perform certain specified acts or kinds of acts on behalf of [the] principal . . . The agent is attorney in fact and his power is revoked on the death of the principal by operation of law. Such power may be either general (full) or special (limited)"(1) Today, powers of attorney are often placed in four categories, each of which expand upon the above definition.

Standard Power of Attorney. The basic power of attorney gives the attorney in fact (the agent) the temporary right to act on the principal's behalf, often in regard to financial affairs. The principal can even restrict the agent's right to act on his/her behalf to only one transaction. This form of the power of attorney usually terminates at a specified time, or when the principal becomes incapacitated, which is when an agent is needed the most.

Durable Power of Attorney. Unlike the standard power of attorney where the agent's power terminates when the principal becomes disabled or incapacitated, a durable power of attorney continues until the principal dies or until the principal revokes the power. Here, even if a client is unable to make a decision, he or she has appointed someone who has the authority to make decisions for the client. If the power is not durable or if a client has not appointed an agent, the court normally will establish a conservatorship or guardianship to act on the client's behalf in the event of incapacity. These court procedures can be quite costly. In contrast, a durable power of attorney is normally more cost effective and more efficient in carrying out the principal's wishes.

Springing Power of Attorney. With a springing power of attorney, a "springing" event must occur in order to trigger the agent's power or to terminate the power. Normally, the springing event is the principal's incapacity, but the principal may specify in the document any event that will activate or terminate the power. If the principal never becomes incapacitated or the specific event never occurs, a springing power of attorney never goes into effect, and the principal retains total control over his or her financial affairs.

These three preceding types of powers of attorney traditionally have been used to handle financial decisions, not health care decisions. In some states, these forms of powers of attorney cannot be used to make major health decisions for the principal. So, even if a durable power of attorney has been established, some states may require that the principal establish a durable power of attorney for health care.

Durable Power of Attorney for Health Care. In a durable power of attorney for health care, the principal gives the attorney in fact the authority to make all decisions in regard to the principal's health care. This includes decisions to be hospitalized, to be transferred to another hospital, to select medical treatments, and even to terminate methods of life support. Normally, this power becomes effective only with a medical certification of a principal's incapacity, unless the durable power of attorney provides otherwise.

General and Limited Powers

Once your client decides to establish a power of attorney, one of the most important issues to address is what specific powers should the client convey to the agent. The agent can be given limited powers or general powers. In a power of attorney with limited powers, an agent cannot take any action that is not specifically listed in the power of attorney. In contrast, under a general power of attorney, few restrictions are placed on the actions an agent can take.

Some state statutes, however, impose restrictions on the actions that agents can take, even if the power granted is general. For example, in many states, an agent cannot give gifts on the principal's behalf, unless that power is expressly authorized in the power of attorney. Also, there are certain rights that cannot be conveyed to an agent, even if they are expressly granted in the power of attorney. For example, a principal normally cannot convey to an agent the right to make, amend or revoke the principal's will.

Whether the purpose of your client's power of attorney is for financial reasons or for health reasons, advise your client to be careful to ensure that all potential problems or decisions that an agent might face are addressed in the power of attorney. This is particularly true for the durable power of attorney for health care because certain actions, such as requesting that artificial life support be terminated, must be explicitly stated in the power of attorney.

Triggering Event 

Another issue that clients may ask questions about is what events trigger a power of attorney. This issue is especially important if a client has a springing power of attorney or a durable power of attorney for health care.

Health Care. There is no uniform event among the states that activates the durable power of attorney for health care. In some states, the durable power of attorney for health care becomes effective immediately upon its signing unless a limitation is placed upon the date of implementation. In other states, the powers and duties of the agent to make health care decisions are triggered by a medical certification issued by a licensed physician(s) stating that the principal is incapacitated and will remain incapacitated for an extended period. For example, in Missouri, two licensed physicians are required for certification unless otherwise asserted in the power of attorney document. The powers and duties normally end upon certification that the principal is no longer incapacitated.(2)

Financial. In some cases, your client's physical health may remain strong and his/her overall mental ability may be sound, but prudent financial decisions many have become more difficult for the client. In that case, a client will need a general durable power of attorney so that a designated agent can handle the client's financial affairs. The trigger, scope and duration of the powers given must be identified in the power of attorney document.

Who Should & Should Not Be Given The Power of Attorney

One of the most important decisions that must be made, and sometimes the most difficult, is who should serve as the attorney in fact. It is important to remember that establishing a power of attorney conveys tremendous power to your agent.(3)

There are several instances where the appointment of an agent resulted in major financial loss to the principal. In some cases, the loss was unintentional; the agent simply was not qualified to handle the required financial transactions. In other cases, the agent intentionally defrauded the principal.

As for health decisions, there are reported cases where the decision of whether or not to terminate life support needed to be made, and the decision that was made was not in compliance with the principal's desires. Moreover, when a principal establishes a durable power of attorney for health care, the agent is given the authority to make decisions for the principal, even if those decisions conflict with suggested medical advice. So, the choice of agent is a critical factor in the success or failure of carrying out the principal's wishes.

Often, the agent selected is a spouse, a daughter, or a son. Although it may be reassuring to have a loved one act on a client's behalf, sometimes loved ones should not be selected as the attorney in fact. Before appointing an agent, you should advise your client to ask: Does the loved one actually have the education, knowledge, skill and ability to make major financial decisions? Can the loved one be manipulated by another person? Does this potential agent and your client have similar views on maintaining the quality of life, or terminating medical treatment to end life? If your client questions the person's trustworthiness, or his/her ability to manage finances, or the person's philosophy toward maintaining the quality of life, then your client should reconsider designating that person as the attorney in fact.

In addition to designating the agent, your client should designate a different person to be the successor agent in case the primary agent becomes incapacitated or decides to withdraw as primary agent. Also, the client should be aware that certain individuals may not be permitted by law to serve as agents. For example, in a durable power of attorney for health care, those who normally cannot serve include: the client's doctor, the doctor's employees, or the owner or employees of a health care facility in which your client is a resident. In some states, however, these individuals can serve as an agent if they are directly related to the client.

How To Establish A Power Of Attorney

Establishing a power of attorney usually does not have to be difficult or costly. Standard forms may be used in most states.

To create a durable power of attorney, most states require that the word "durable" appear in the document title. Also, often a statement similar to this must appear in the document: "'This power of attorney will continue to be effective if I become disabled, incapacitated, or incompetent.'"(4) For all types of powers of attorney, the principal must sign the documents, as do the witnesses. In many cases, the signatures must be notarized. If the principal conveys powers to the attorney in fact to handle real estate transactions, in some states, the durable power of attorney must be notarized and properly filed with the appropriate state or county office.

Although many states have developed standard forms that allow a person to establish his/her own power of attorney, you should advise your client to remember that a standard form cannot serve everyone's needs. To convey specific rights to the agent, the power must be made explicit in the power of attorney. An important step in establishing any power of attorney is to determine and list the specific powers to be conveyed. The following is a partial list of powers that may have to be granted in the power of attorney in order for the agent to be authorized to perform such acts:

1. To execute, amend or revoke any trust agreement.

2. To make or revoke a gift of the principal's property.

3. To name or change the principal's beneficiaries.

4. To exercise power of appointment.

To avoid future problems, it is advisable to have a lawyer prepare your client's power of attorney. Be aware that certain interested parties, such as a spouse or child, can ask the court to set aside the power of attorney. Therefore, seeking legal advice when creating the document reduces the chances of successful subsequent challenges.

Another way to avoid problems is to have your client discuss his/her power of attorney with the client's financial institutions, doctors, potential nursing homes and hospitals of choice before the client becomes incapacitated. As a result of these discussions, the client may learn that the language in the documents does not authorize the client's agent to act in the manner the client desires. If that is the case, the client can modify the documents to meet the requirements of the institutions or interested parties so that the client's directives can be carried out.

Financial. Often, a financial institution will require its own special forms to be completed before it will accept a power of attorney. Some forms require signatures of both the principal and agent. Sometimes, the forms must be notarized, while at other times a signature guarantee is required. Some financial institutions will require the principal to sign both an indemnification and power of attorney agreement. In that case, the principal is agreeing to indemnify and hold harmless the institution from actions "believed" to have originated from the principal's agent. Other institutions may require the agent to sign an affidavit declaring that he or she is the actual agent named in the power of attorney. Some institutions require an original copy of the document, while others will accept duplications. If the client has accounts in several financial institutions, it may take weeks to complete all the necessary paper work.

One potential problem is the fact that some financial institutions do not accept powers of attorney established in other states. Consequently, if your client's out-of-state financial institution has such a policy, once the client becomes incapacitated, it is often difficult to fulfill the institution's requirements for establishing a power of attorney. Therefore, a power of attorney should be established with all out-of-state institutions before anything happens to the client which would result in your client's incapacity.

Health Care. Most states have a standard form for the durable power of attorney for health care. Some states have a form that combines the durable power of attorney for health care with a health care directive. However, hospitals and nursing homes may require special forms to be completed or specific documents supplied before they will honor a power of attorney. If there is a likelihood that a client will be admitted to a health care facility out-of-state, you should advise your client to determine if that state honors health care documents from other states. Your client should also inquire whether that state would impose specific limitations on the appointed agent's actions. In some cases, your client may need to create documents for each state.

Even with the proper forms, there is one major problem unique to health care that does not apply when dealing with financial institutions. That is, what is the hospital, care giver, or doctor's policy toward providing health care, maintaining life, and terminating life? Is that policy compatible with your client's view? If the client's doctor believes that all possible medical treatment should be given to keep the client alive, and your client's philosophy is that he or she does not want to live with severe suffering or in a vegetative state, the agent is placed in the difficult position of trying to carry out the client's wishes against medical advice. It is important to note that in some states health care providers are not required to accept the decision of an attorney in fact if the decision is contrary to the health care provider's personal beliefs or conscience.

The best way to ensure that your client's wishes are respected is to have the client hold flank discussions with the client's health care providers before medical treatment is needed. If your client's desires conflict with those of the health care providers, then your client should reconsider his/her choice of doctor or health care provider.

Terminating Powers Of Attorney

Certain events terminate a power of attorney by law. For example, the principal's death normally automatically terminates a power of attorney, whether the power granted is durable or not. In some states, however, the principal may authorize the agent to take certain actions after the principal's death. For example, in Illinois the agent may be granted the power to make anatomical gifts, to request an autopsy, or to handle the disposition of the principal's remains.(5) If the attorney in fact is the principal's spouse, the dissolution of marriage or a legal separation ordinarily will terminate the power of attorney by law, unless the original document states otherwise.

If your client has established a durable power of attorney, but he or she now wants to terminate it, what must your client do? In many states, the client may revoke a durable power of attorney at any time, either orally or in writing. Other states only permit termination by revocation in writing. It is always better to advise your client to revoke the powers in writing. Normally, revocation of a power of attorney is effective when an agent is notified of the termination; however, often specific actions must be taken to help prevent potential problems that may occur upon revocation.

Financial. If the agent has been responsible for any financial transactions for your client, the client should immediately notify all interested parties or financial institutions that the power of attorney has been terminated. Many financial institutions will require that this notification be in writing. Notification is very important because if a third party believes the former agent is still acting on the principal's behalf, the principal may be held responsible for the agent's actions.(6)

Health Care. Under a durable power of attorney for health care, revocation may not be effective until the attending physician is notified of the termination. In states where the agent's powers are triggered by the principal's incapacity, those powers will often end upon medical certification that the individual is no longer incapacitated.

Finally, be sure to advise your client to collect and destroy or invalidate all copies of the terminated power of attorney. If the client fails to do this and becomes incapacitated, and a terminated copy remains, the powers in it may be activated against the client's wishes to terminate them.

Living Wilds And Health Care Directives

Sometimes, if your clients have already established a living will or a health care directive, they may ask if there is any need to establish a durable power of attorney for health care. In both of these situations, your advice should be that a durable power of attorney for health care is probably still needed. To understand the reason for this, your client must understand the purpose of each instrument.

Living Will. A living will is a written document stating that the patient does not want any extraordinary efforts taken to extend his/her life when he or she is faced with a terminal illness or condition. Typically, living wills carry with them certain restrictions. Probably, the most important one is that the traditional living will is activated only when the creator has a terminal condition. A terminal condition is one in which death is imminent despite proper medical treatment. If medical treatment can significantly prolong a person's life, by definition the person's condition is not terminal and the living will normally does not apply; medical treatment must be given.

Health Care Directive. A health care directive is a document prepared in advance of a serious illness that instructs health care providers to withhold or withdraw certain medical treatment. The directive goes beyond the typical living will and provides specific instructions about what actions should or should not be taken to prolong the patient's life. If a person is in a persistent vegetative state, although not a terminal state, a directive may instruct a medical institution to take action that will result in terminating that life.

Many states have developed standard advance health care directive forms that allow the principal to designate specific procedures that the principal wants withheld or withdrawn. These procedures may include: artificially supplied nutrition and hydration, heart-lung resuscitation, dialysis, and chemotherapy. Moreover, the principal can direct that all procedures that merely prolong life without improving the principal's medical condition be discontinued. The advance directive must be very clear in stating what medical treatment can or cannot be withheld or withdrawn.

Need for Both Documents. Even if your client has a durable power of attorney for health care, he or she still may need to have a living will and/or an advance health care directive. The living will and health care directive serve as guides for the agent who must make health care decisions for the principal. Moreover, if the agent is disqualified or not available to make necessary health care decisions, a living will or health care directive will dictate what actions should or should not be taken to sustain the principal's life. At the same time, a durable power of attorney for health care is needed to provide authorization for the agent to act on the principal's behalf.

Once your client creates the appropriate health care documents, the client should sign several copies. One copy should be retained by the client's lawyer. Other copies should be given to the attorney in fact and the client's doctor, and one should go in the client's hospital records. Additionally, one copy should be kept on the principal's person, especially when traveling.

It must be remembered that a durable power of attorney for health care is designed for a special purpose, medical decisions. It normally does not address the situations in which a client needs an agent to make or carry out financial decisions. Thus, you should advise your client to establish two durable powers of attorney, one for health care and the other for property and financial affairs.

Conclusion

Creating a power of attorney, a living will, or a health care directive is a relatively easy procedure. The time for your client to prepare these documents is when they are not needed. Clients should create these documents before becoming incapacitated so the clients' wishes can be carried out, and so their loved ones will not be placed in a position of trying to guess what the clients would do for themselves. Accountants can provide a valuable service to their clients by informing them of the importance of the preparation of these documents.

References

1. Blacks Law Dictionary, 1990, St. Paul, MN: West Publishing Co. s.v. 'power of attorney', 1171.

2. Mo. Rev. Stat. [section] 404.825 (1991).

3. Under the Uniform Laws Annotated general power of attorney, the agent has the power to take all necessary financial actions the principal normally would take including: real property transactions; tangible personal property transactions; stock and bond transactions; banking and other financial institution transactions; business operating transactions; insurance transactions; estate, trust, and other beneficiary transactions; claims and litigation; personal and family maintenance; social security, medicare, medicaid, or other governmental program claims; retirement plan transactions; and tax matters. Unif. Statutory Form Power of Attorney Act [section] 3-16, 8A U.L.A. 306-18 (1988).

4. Unif. Statutory Form Power of Attorney Act [section] 2, 8A U.L.A. 305 (1988).

5. Ill. Ann. Star. ch. 755, para. 45, [section] 4-7(d) (Smith-Hard 1993).

6. This potential liability is illustrated by the following statement set forth in the Uniform Statutory Form Power of Attorney Act, section one. It reads: "I agree that any third party who receives a copy of this document may act under it. Revocation of the power of attorney is not effective as to a third party until the third party learns of the revocation. I agree to indemnify the third party for any claims that arise against the third party because of reliance on this power of attorney" 8A U.L.A. 304 (1988).

Mary Virginia Moore, JD, MBA is an Assistant Professor of Business Law at the Harrison College of Business at Southeast Missouri State University, Cape Girardeau, MO.

Charles W. Wootton, DBA is a Professor of Accountancy at the Lumpkin School of Business at Eastern Illinois University, Charleston, IL.