Last Updated on October 13, 2021 by Fair Punishment Team
Alongside a will, you should have powers of attorney for finances and health care. These should all be a part of everyone’s estate planning documents.
There are plenty of reasons to use a power of attorney and there are also many types of powers of attorney.
It can be a good idea to have some in place, even now, as you never know when an emergency may arise and the power of attorney will be needed.
Some other powers of attorney will only be needed in particular situations, such as for your will.
Power of attorney and the crafting of your will go hand in hand. Power of attorney will give someone else the ability to make legal decisions on your behalf in the event that you are unable to make them for yourself, this can include financial decisions, health care matters, as well as decisions upon the care of your children.
Your will is your personally dedicated and crafted information that will help legal institutions and the person who has power of attorney manage what happens in the event that you pass away.
Can a power of attorney be a beneficiary in a will?
There is generally no conflict of interest between being a beneficiary and a power of attorney.
Someone who has power of attorney has the ability to make decisions for you, legally, in the event that you are unable to, this could be due to severe hospitalization, mental disease such as Dementia or Alzheimer’s, and other possible situations that could render you incapable of making these important decisions yourself.
A beneficiary is a person or entity that is named to receive death benefit. You can have one or more beneficiaries in the event of your death.
These two things; beneficiary and power of attorney, can be the same person or different people, depending on your situation and decisions. There is no conflict of interest or power between these roles either.
If you are both the beneficiary and power of attorney, you should use the power of attorney in an appropriate manner, ensuring that you use said power in the interest of doing the best for the person.
It can be beneficial for you to document everything you do in this situation so that if any issues do arise, you can show the workings and why your actions were appropriate.
You need to ensure that you actually do live up to the appropriate standard of care when you act in the role of having power of attorney.
Can a power of attorney see a will?
Someone with power of attorney can ask to see the person’s will, however this is frowned upon and there must be a reason to do so. It does depend on the specific circumstances though.
The person who created the will is the testator, and before their death they will name someone as the executor, who will handle the estate after death. The only people allowed to read the will are the persons allowed to by the testator.
This can include whoever had the power of attorney. In many cases the testator will allow the attorney to read the will, or even draft the will for the testator.
The ability to see the will is assigned by the creator of the will. If the testator is still alive and does not want anyone to read the will, then there is no one who is otherwise entitled to it.
However, some testators will allow the executor and sometimes those with the power of attorney to see the will. Beneficiaries are not entitled to any information in the will before the testator dies.
This is why there can be issues that arise if someone with power of attorney is also a beneficiary, although this does not always yield problems.
Does a power of attorney have access to bank accounts?
The simple answer is yes, however it is complex. Prior to allowing the agent (person with power of attorney) access to the bank account, the bank must first confirm the identity of the person seeking access is the same as the agent granted power of attorney.
This means that the agent will need a copy of the document alongside proper government issues identification.
Banks frequently do not allow an agent ability to change the beneficiary of a bank account, and some state laws will prevent this. Power of attorney allows an agent the access to the principal bank accounts, this can be in either general power or financially specific power.
If the document grants the agent power over that specific account, then the agent must have a copy of the document alongside government legal identification.
This process is managed by the banks, and some banks may place roadblocks when there is an attempt to access these accounts.
If you have a power of attorney granted then you should check with your bank to find out if the document you intend on using is sufficient.
While you should be mindful of your state laws on the process and applicable forms to grant power of attorney, you should also be aware of your banks proceedings as well, as despite state law, banks may have their own ideas and processes, it is also not uncommon for banks to have their of forms for this process as well.
What is more important, a will or power of attorney?
Power of attorney and a will go hand in hand. The power of attorney provides protection during your lifetime, and the will provides power of protection after your death.
As a combination they will provide a continuous umbrella of protection for your assets. This is why it is often recommended that you create a will and a power of attorney together.
A last will and testament is a document that will allow you to decide who will inherit your assets when you die. You select who these people will be, and what they will each receive.
You can also name an executor who will be the person responsible for distributing your assets as are in accordance with your wishes.
A last will can also be used in order to name a guardian for your youngest child, if they are underage. These documents must be signed in front of witnesses.
Then, a power of attorney is a legal document that will authorize someone who will be named as the attorney, to make business, legal and financial decisions on your behalf in the event that you are unable to do so.
The attorney will be able to pay your bills, make home repairs, sell your car, run your business and more. You can choose who this person is, and there is then no delay between the time this person is named and the time you need the person to handle your affairs.
Remember that each state will have its own power of attorney form and laws. This is a document that must be signed and notarized in most states in order to be valid.
Neither one of the documents is more important than the other, as they have different uses and are used in different ways. But, it is recommended that you have both.
What is the best power of attorney to have?
There are two main types of power of attorney. You can write a power of attorney in two forms, these are; general power of attorney, or limited power of attorney.
A general power of attorney is probably the best one to have. This allows the agent to make a wide range of decisions.
This is the best option to choose if you want to maximize the persons’ freedom to handle your assets and manage your care. This is the broadest version of power of attorney and is the most often used.
The second option is limited power of attorney. Limited power of attorney restricts the agent’s power to particular assets. This means you may grant the person access to your bank account, but not to your house or investment portfolio.
In either situation, these are most highly technical legal documents. While you can go about this yourself, it is best to work with experienced elder care law attorneys that specialize in estate planning, regardless of which power of attorney you intend to use.
Why do you need power of attorney if you have a will?
Power of attorney and a will are not the same thing. Power of attorney grants someone access to your assets in the event that you cannot manage them yourself, which could happen for many reasons. This power is in place while you are alive.
In contrast, a will is a document that notes your wishes after passing. This can include the people who will receive your assets, and what assets they receive after you pass away.
A power of attorney and will are not the same, while they are both legal documents that protect you and your wishes, they are very different. One is in place while you are alive, and the other after your death.
A will cannot do the same thing as a power of attorney and therefore even if you have a will it is a good idea to have a power of attorney.
Similarly, a power of attorney cannot do the same thing as a will can, and thus, even if you have a power of attorney, you should also put a will in place too.
These two documents are non-conflicting, and therefore for full protection in life and after life, it is best to have both in place.