The Power of a Power of Attorney

There isn’t an attorney alive who wouldn’t recommend that adults have a power of attorney so if they can’t sign important documents, a person they trust can sign for them. A power of attorney can cover almost all financial matters, including bank accounts, stocks, bonds, real estate and applications to government agencies for programs such as Medicaid, housing assistance or veterans benefits. It’s common for people to think that’s for older people, but that is simply not the case. When my older daughter was heading off to Africa to do research on a Fulbright scholarship, accompanied by my daughter Halley Allaire, now in our law firm, I made them do a
power of attorney and a living will in case something went wrong. Fortunately, nothing went wrong. And when Halley became a Navy JAG lawyer, some of her first clients were members of the SEAL Team Six, because the Navy command knew they might be incommunicado on missions for periods of time, and if any legal matters came up, they needed a family member or other trusted person to handle things for them. As I wrote in an article many years ago, if it’s good enough to be done by SEAL Team Six, it's good enough for everyone.

In Connecticut the person named power of attorney is now called your agent. Older powers of attorney may have been signed when there were two kinds, non-durable, and durable. When I started practicing law, the general rule was that a power of attorney was non-durable which meant that it ceased to be effective when the person making it became senile or lost mental capacity. That went back to old English law in colonial times. But a major reason to do a power of attorney with life spans now nearly double that of colonial times, is to allow trusted family or other persons to handle your affairs if you become incapable due to the infirmities of old age.

That’s why Connecticut changed its law so that all powers of attorney are considered durable, and are still effective if a person becomes incapable, whether temporary or permanent. Who to choose is the single most important decision. That person should have experience in handling bank accounts, investments, and all kinds of financial matters. Good judgement and being careful are key attributes. Having said that most people are going to name their spouse, and then a child or children depending on the age, health and good judgement of the persons selected. The agents named should be trustworthy, fair minded, know your wishes and how you want things done and
be loyal to you. If that person were not trustworthy, he or she could take your assets without you knowing until after they were gone. Some children could never be trusted to be fair to their siblings or might even take advantage of their parents. So the person or persons you pick should have your full confidence that they will look out for your best interest and not their own.

When people become incapable of handling their own affairs, and need long term care, that is when a power of attorney is invaluable, because the agent can then hire competent legal and financial counsel and follow rules for Medicaid at home or in a facility, or get VA benefits, while preserving as many assets as possible to pay living expenses at home. It’s often said that Connecticut has some of the strictest eligibility rules in the country, but up to now, if you can qualify, it still has decent funding to keep you at home. So the word to the wise is have a power of attorney done by a Connecticut lawyer who knows all the provisions that should be included so that if you need care, the maximum amount of assets can be protected and care received. For example, if the power of attorney has terms that allow your spouse to get a court order to switch 401K or 403b from a sick spouse to a healthy spouse, without paying income taxes, the assets can be saved by the healthy spouse.

Mail order or internet documents are unlikely to have the special provisions needed to take actions to satisfy the Medicaid or VA rules. That means money could be lost, and the family put into difficult financial straights. Avoid that by doing a power of attorney tailored to your family, financial, and potential care needs. You will feel very satisfied that you have taken a vital step to protect yourself and your loved ones.