Powers of Attorney and Other Decision Making Tools

It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.

Do you ever wonder who will handle your money and affairs if you become seriously ill, disabled or injured and cannot do these things for yourself? You might expect that a spouse or other family member automatically has the power to do what is necessary. But this is not true. Under Oregon law, someone must have special authority to act for another person. This special authority is almost always created by a document of some kind. This document is written and signed in advance by the person giving the authority, before the person needs help. A person who has lost the ability to understand and manage his or her own affairs cannot authorize someone else to handle them.

POWERS OF ATTORNEY

The most common document is called a power of attorney. A power of attorney gives someone else, called an agent, the right to make financial decisions about the things you specify in the document. If you limit the power to certain decisions, the document is called a specific power of attorney. If you do not limit the power you give to another person, the document is known as a general power of attorney. A parent might sign a specific power of attorney at the bank to give an adult child the authority to make deposits and write checks on a specific bank account. A general power of attorney can be used to authorize a trusted relative or friend to handle a wide range of business, including banking, buying and selling property and making investments. The document itself states whether the powers it authorizes are specific or general. You can make the power of attorney temporary if, for example, you are going to be out of the country and want an agent to handle your affairs when you are gone. If the power of attorney does not contain an ending date, the law assumes it is "durable." That means the authority does not end. A durable power of attorney is useful when the person who authorized it later becomes unable to handle her or her own business affairs. The agent simply takes over the decision-making.

By giving your agent your power of attorney, you are not giving up the power to continue conducting the same transactions yourself so long as you have the ability to do so. The person who is your agent can make decisions too. You can end the agent’s authority by revoking it in writing. All powers of attorney end at the death of the person who authorized the power. They are not a substitute for estate planning.

Beginning in 2010, Oregon law specifically allows powers of attorney that do not take effect at the time they are signed. The person who creates the power can give a specific date when it will go into effect, or list a particular event that would cause the power to be effective, or describe a situation when the power could be used. This type of power of attorney, called a "springing" power, springs to life only if the event the power mentions comes to pass. A person might prefer to give an agent power in the future at the time the person becomes unable to handle his or her affairs, but not before. In such a case, the person can say who will determine if the person has lost that ability.

Forms for powers of attorney are available from many sources. This is both good and bad. It is easy to buy an inexpensive form from a stationery store or sign a form provided by a bank. It is not necessary to have a lawyer involved. Unfortunately, some people sign the forms without understanding what they mean, though. It is important to understand that the person named in the power of attorney can make decisions with serious financial consequences in all of the areas listed in the document. That person will have no authority to act in an area that is not listed. A printed form may include too much power or too little power, depending on the individual circumstances. In addition, a power of attorney can be abused. Dishonest people may use this type of document to get control of other people's money or property. For this reason, it is a good idea to talk to a lawyer first if you plan to sign a power of attorney. The lawyer can help you decide what is needed. The lawyer may suggest the use of a printed form, perhaps adding language to limit or expand the powers in the form; or the lawyer may suggest a custom document. In more complicated situations, the lawyer may offer another option such as a trust.

REPRESENTATIVE PAYEES, GUARDIANS, CONSERVATORS

For the person who is no longer able to understand enough to sign documents, other legal tools are available. For example, the Social Security Administration and the Veterans Administration can appoint a representative payee to receive and handle the benefit checks on behalf of a person who is mentally or physically unable to handle the money. The agencies generally will consider handling the person's benefits this way only after being notified that the person is having a problem handling the money himself or herself; the agencies are required to investigate any report about the person's inability to handle the funds before they arrange for a representative.

The power of a representative payee is limited to managing another person's Social Security benefits. If the person has other money or property that he or she cannot manage, it may be necessary for a state court to appoint a conservator or a guardian. A conservator handles only finances; one is appointed by the court if the person owns a house or other property that needs management or protection. A guardian, on the other hand, generally makes decisions abut health care and other personal matters, but not about significant financial matters. A guardian must honor a person's advance directive for health care. A person for whom a conservator or guardian has been appointed loses control over his or her own finances.

After a petition for conservatorship or guardianship is filed with the court, notices and copies are given to the affected person and mailed to close relatives. If the person objects orally or in writing within 15 days, the court will hold a hearing to determine whether a guardianship is really needed. If there are no objections, the judge generally signs the order, appointing as conservator or guardian the person who asked for those powers.

A conservator or guardian is usually given broad authority. A conservator is required to give a financial bond to guarantee that money or property will not be misused. Both a conservator and a guardian have to make a written report to the court once a year. If a person has already given an agent a power of attorney before a guardian or conservator takes charge, the agent continues to have power only if the guardian or conservator permits it. The guardian or conservator has the right to change or revoke the power of attorney at any time.

Conservatorship and guardianships can be created over minor children and their property, too. In those cases, different rules and procedures apply than the ones for adults described in this topic.

1. What is a conservatorship?

Conservatorship is the legal process for management of your property and providing for your financial needs when you become incapacitated. If a court determines you can no longer handle your financial affairs, a conservator is appointed. The conservator must list your assets in the court file, manage your property under court supervision and file periodic accountings with the court.

If you transfer all of your assets to a revocable living trust and give your trustee detailed instructions on how to handle your assets if you become disabled, there should be no need for a conservatorship. Your written agreement or declaration can specifically authorize your trustee to rely on a letter from your physician as proof of your incapacity.

A conservator can establish, or fund, a revocable living trust if: 1) the trust would be a more efficient way to administer the property of the incapacitated person; and 2) use of the trust would be consistent with the person’s overall estate plan. A special court order is needed to do this, however.

A durable power of attorney may serve as a relatively inexpensive way to avoid conservatorship.