What Happens If There Is No POA In Place?
by LegalNature - November 2011
Proper estate planning includes planning for both financial and medical scenarios where someone might become incapacitated and requires the assistance of a trusted person to act on their behalf. Normally, people form a power of attorney in advance of any anticipated physical problems that would prevent them from acting in their own best interests both financially and medically. A power of attorney allows them to appoint an agent to manage their affairs when they become unable to do so.
But what are the consequences of not having a power of attorney prepared in the case of incapacitation? Generally, decisions about a person’s financial and medical management are made according to the laws of the state they live in. In the event of medical incapacitation, usually a family member will be called upon to make any important decisions in the absence of a power of attorney. In this situation, difficulties can arise if there is more than one family member and they differ on the course of medical action. Even more difficulties can arise if there are no family members available at all. In this case, medical decisions will be made by attending medical staff according to what they feel is in the best interest of the patient, and this might not always be what the patient actually wanted, but the absence of any power of attorney makes this inevitable.
In the case of financial estate management, the absence of a power of attorney can lead to time consuming and expensive remedies for family members if proper planning has not been completed. Generally, if a person has not assigned an agent to act on their behalf, control of financial management reverts to the state. Probate courts usually will appoint a guardian or conservator to oversee the management of a person’s estate if there is no legally appointed agent acting on their behalf. If this occurs, family members will have to petition the court for access to the person’s finances. This, of course, takes time and money and can lead to additional frustration on top of dealing with an incapacitated relative.
A power of attorney, while designed as a beneficial tool for a person in need of assistance with financial or medical decisions, is also an invaluable instrument for family members and relatives. It provides for a definite decision making process and allows a trusted person to make those decisions rather than someone the court appoints or a medical staff unfamiliar with the patient’s wishes. It is a vital estate planning tool that every person should consider completing prior to actually needing one.