It’s a story that rings true for too many families, and usually doesn’t produce the ending they might have hoped for: a person becomes incapacitated without having a power of attorney in place. Perhaps you or your loved one don’t want to think about the reality of getting older, or perhaps you believe there’s plenty of time before you’ll need one. 
In any case, not naming a POA before you become incapacitated can have devastating consequences and could result in a lack of protection for yourself and your family. Experienced CPA Marcia Campbell has heard personal stories like this before, and recently had to turn away a distraught son in need of help for his father who had been admitted to the hospital. Sadly for him, his father was too ill to make a choice about who would act as his POA.
What a Power of Attorney Does
A power of attorney is an extremely important estate planning tool; in fact, it’s just as important as having a will. This document allows a person that you select to act in your best interest if you become incapacitated, whether suddenly or over time.
Why Power of Attorney is Important
The person chosen as the power of attorney is given the authority to quickly step in and take care of your affairs. But in order to execute a POA, you need to have capacity. Regrettably, many people delay completing this vital estate planning step until it’s too late and lose the legal capability to do so.
What Happens When It’s Too Late
If you become incapacitated either on a temporary or a permanent basis without a power of attorney in place, there are legal processes that will allow someone to take control of your affairs. However, these options are not ideal and can be costly.
The written document that could once be executed outside of court now becomes a much larger legal matter. Without the proper documentation, only a judge can appoint a conservator or guardian. That process requires time, money, and can result in a choice you may not have selected on your own.
Once a guardian or conservator is selected with the approval of a judge, the guardian or conservator then has the fiduciary duty to act in your best interests. This means the court will oversee their choices to ensure they’re fulfilling their obligations. It’s a lengthy and often stressful process that ultimately could have been avoided with a proper plan in place.
What Do I Need
Under California law, a power of attorney must be dated and signed by the person delegating their authority before a Notary Public or before two witnesses. It’s important to note, those witnesses must not hold any personal stake in the power of attorney. If you choose to obtain a form online, it’s wise to consult an attorney or other legal professional to make sure it’s done correctly. Enlisting professional help is especially crucial when dealing with an underage child or someone without capacity.
Do you need help or have more questions about setting up a power of attorney?
At Marcia L. Campbell, CPA we act as trusted professional fiduciaries for many of our clients. As licensed professionals, we understand the importance of knowing that your trust, estate, or conservatorship is being managed legally, ethically, and accurately. We act as caring and objective fiduciaries and client advocates.
If you need help, please contact us by filling out our Contact Form or by giving our office a call at +1(951)686-3608.