Hi, my name is Jordan Flake. I'm an Attorney with Clear Counsel Law Group and our firm practices in estate planning. One of the things that I confront a lot in my consultations is questions about Power of Attorney Agent documents.
Our office does a free consultation, we don't charge at all to have you just come in, meet with us, bring documents if you have any.
If you don't have documents, bring questions, and we'll look over your documents and just make sure that they say and do what you want them to say and do. Feel free to give us a call for a no charge consultation.
One of the documents and one of the things that we'll talk about is whether or not you have your Power of Attorney Agent documents set up properly.
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In order to really understand that, we need to consider a scenario where, heaven forbid, you become incapacitated. You're incapacitated, you can't make these decisions, that you take it for granted, you can't really make them for yourself.
You can't make financial decisions about how to spend your money.
You can't make medical decisions about what treatment to receive, what treatment not to receive, what medications to take, which doctor's advice you need to follow when you have different medical options. You can't pay your taxes or pay your bills or apply for insurance or government programs or whatever the case may be.
You're totally incapacitated.
In that setting, Nevada law actually steps in and says, "Hey, we want to protect the rights of incapacitated individuals," so we have something called Guardianship Court, where if we have an incapacitated individual and they have legal or medical issues that need to be resolved, that person can essentially have a guardian come in on their behalf and go to the court and say,
"Hey, my wife is incapacitated. I am running into some roadblocks, I need to commence a guardianship proceeding" and then the Court will allow whoever is going to be the guardian to have all these legal rights overview.
Why You May Want to Avoid Guardianship
The problem with guardianship is that it's expensive, it's time consuming, it's a Court process, generally requires hiring an attorney and probably the worst thing about it is if you don't have somebody pre-selected, then you may end up with somebody who you really don't want or you really don't trust making legal and medical decisions for you.
In Clark County there has been in the very recent past in Clark County there has been some scandal and some drama around the Guardianship Court because there were private guardians who are being accused of using their opportunity as private guardians to enrich themselves, among various other allegations.
No matter where you stand on those allegations and those news stories, I think we can all agree that if we could just avoid the process entirely, we'd be in much better shape.
How Valid Power of Attorney Agent Documents Will Help You
That is where Power of Attorney Agent documents step in. If you have properly executed, valid and enforceable Power of Attorney Agent documents that contain all of the information, then you really should, I'd say 99.5 times out of 100, avoid the Guardianship Court process entirely and just have it done privately via your own pre-determined pre-drafted wishes.
That's what I like to see as an estate planning attorney.
That's the kind of certainty that I want to pass along to you as a client.
What we do is, there's essentially three different Power of Attorney documents that I'll just run through here really quickly.
Power of Attorney Agent over Financial Care
The first is Power of Attorney over financial care and what this means is that if you become incapacitated, you can designate an Agent who will assume responsibility for your financial care and for your financial decisions and making sure that your assets and that your money is safe.
Normally, you'll want that to be your spouse, most people will, but you also have to take into consideration what if you're in an accident and the accident that claims your spouse's life leaves you incapacitated, so it's really important to get somebody else back up in there as an alternate Power of Attorney Agent for financial purposes.
Because of what's happened in Clark County, we also are very, very cognizant of making sure that we have all of the best contact information for the Power of Attorney Agents, so we have name, phone number, address, email if they have it, alternate phone number if they have it, we can include their work phone.
We want to make sure that if you're in an accident, we can reach out to those people as quickly as possible. By we, I don't just mean us as Attorneys if we become aware of it, I also mean medical professionals, banks, whoever might be making that call, but various ways to get a hold of you so there's really no lag in time or potential confusion.
That's the first one is the Financial Power of Attorney Agent document that grants those authorities.
Now obviously, you'll want to appoint somebody you trust, who you trust not to just go liquidate your account and go on an around the world trip.
You'll also want to appoint somebody who understands that they have a fiduciary duty towards you.
What that means is it's just a fancy way of saying their stepping into your shoes, but their responsible for using that money in a way that will benefit you and in a way that you would approve of if you were able to give those types of instructions.
That's kind of what we consider the fiduciary duty standard there. Aside from that, you have two Power of Attorney Agent documents that kind of speak to medical and healthcare concerns.
Healthcare Power of Attorney Agent
The first one is just a straight up Healthcare Power of Attorney Agent document.
This is where you say, "If I become incapacitated, I want this individual to make medical decisions on my behalf."
Interestingly, this document also has you initial next to your wishes that in order to provide clarity for big questions like, "If you're in a coma and there's no hope for your recovery, do you wish to be kept alive?"
There are five different options, five different paragraphs.
What you need to do is you'll need to, and we'll help you with this, walk through and initial the paragraphs that correspond most closely with your wishes.
Beneath that, there's also an opportunity for us to do customized wishes.
I have had several clients say, for example, that they want three different medical opinions about whether or not their coma is irreversible. That's fine, we can write that into the Power of Attorney Agent documents.
There's no problem there.
This is really great estate planning tool for your friends and family because you don't want to leave them in a decision where they are the ones making your end of life decisions.
Just imagine the pressure of having to decide that for somebody you love. You don't want to be in that spot.
What you want, instead, is a document that contains their signature and their initials so that you know that you're doing what that person who you love very much really wanted and that you're not making a decision to "pull the plug."
I always say that as an estate planning attorney, I am in the peace of mind business and I can tell you these Power of Attorney Agent documents are a way to really increase the peace of mind.
Now if you go into a hospital and you say, "Okay, this is my dad. He's incapacitated. I'm allowed to take care of him. Here's the documents that prove it. Here's my Healthcare Power of Attorney."
The doctors with good reason might be a little concerned or suspicious in that situation because they're looking at an incapacitated individual who can't confirm or deny that you're actually the Power of Attorney agent and they're looking at signatures and they may not have a signature to match it up with, and the doctors don't want to sit around being judges of whether or not this is a valid legal document.
A Living Will or Advanced Directive
Nevada law provides for what's called a Living Will or an Advanced Directive. What we do with that is we have you give a copy to your physician, your general physician.
It's supposed to go into your normal regular medical file.
Let's run back through that scenario where you're taking your dad into the medical office. You bring him in and you say, "Hey, he's incapacitated, but here I am. Here's the Healthcare Power of Attorney Agent documents that state that I'm allowed to take care of him and make medical decisions on his behalf."
The medical staff then will access his medical records and they'll see that previously he had brought in this other document, this Advanced Directive, this Living Will and that that had become part of his regular medical file, that document will validate the document that you bring into the office at that time.
It's a system of checks and balances to make sure that the medical office doesn't have any concerns about whether or not this person purporting to have authority actually has authority.
It's really good, it's really important to do that. We talk with clients all the time who have six or seven of these ten or so elements that I went over in place, or six or seven of the ten, fifteen things that you look for all in place.
However, maybe they don't have all of the right contact information.
Well, that puts you in a scary situation. Maybe they never actually gave it to their doctor.
Well, that puts you in a scary situation. Maybe their Power of Attorney Agent is somebody who is in the military and gets put in different bases throughout the world at different times.
I Will Happily Take a Look at Your Estate Planning Documents
That's something that we need to think about. I guess what I'm trying to say is even if you have Power of Attorney Agent documents, I'd strongly encourage you to pick up the phone and give Clear Counsel a call and just a consultation with me.
I don't charge to just review the documents and run them through a checklist in my mind to say whether or not they accomplish precisely what you're hoping that they accomplish.
A lot of times in these meetings, we just go through them and we say, "Hey, looks like they're good."
Sometimes there's reason to make a change here or there or bring them up to date, but in any event, I don't charge for the meeting.
I'm more than happy to sit down with you, so please free to call our law firm so that we can go over the different types of Power of Attorney documents and I can answer any other questions you may have.