Durable Financial Power of Attorney
A Durable Financial Power of Attorney (POA) is an instrument in which you designate an individual that you trust to act as your Agent and make financial decisions for you in the event you are unable to do so for yourself. The word “Durable” means that this document will stay in effect even if you become incompetent, however you do NOT need to be incompetent or incapacitated for your Agent to act.
Without a Financial POA, your spouse has no inherent right to make financial decisions on your behalf or have access to your individual financial or retirement accounts (IRA, 401k, etc.). The only legal alternative to a power of attorney is a guardianship proceeding where a judge will appoint a guardian who may not be the family member or trusted friend the person would have otherwise selected for themselves.
All powers of attorney are not created equal. If you don’t have a well-drafted power of attorney, the consequences may be the inability to protect your house and life savings from the cost of long term care.
Durable Health Care Power of Attorney
In Pennsylvania, you have the legal right to make your own health care decisions about the type of medical care you require. However, if you are unable to make or communicate your own medical decisions, then having a health care power of attorney in place will allow another person to do so.
PA Guardianship
When an individual no longer has the mental capacity to make decisions on their own, and they do not have a power of attorney, a guardian will need to be appointed to make decisions on their behalf.
Guardianship is a formal court proceeding and is initiated by filing a petition with the orphans court in the county where the incapacitated person resides.
This process can be time-consuming, and when compared to the alternative of having a power of attorney is very complicated and expensive. However, in certain circumstances, a guardianship may be the most appropriate course of action, or unavoidable, in order to preserve the safety and well-being of the incapacitated person.
