A last will and testament and power of attorney are estate planning documents that operate under different circumstances. Both forms offer peace of mind to your loved ones; however, they do not replace one another. This article explains how these documents work together as part of your estate plan.
Table of Contents
- What Is a Last Will and Testament?
- What Is a Power of Attorney?
- Types of Powers of Attorney
- Financial Power of Attorney
- Medical Power of Attorney, Health Care Power of Attorney, Living Will, and Health Care Directive
- Does a Power of Attorney Affect a Will?
- Do I Need a Power of Attorney?
- Do I Need a Will?
- Who Should Keep My Will?
- Who Should Keep My Power of Attorney?
- How Do I Make a Will or Power of Attorney?
What Is a Last Will and Testament?
A last will and testament is a legal document where you leave instructions and express your wishes for your property when you die. In your will, you can:
- Appoint a personal representative (or executor) to handle your estate through the probate process in probate court.
- Designate a guardian for your minor children.
- Direct your personal property distribution.
- Create testamentary trusts.
The testator is the one who makes a will, while those receiving property or money from your estate are beneficiaries. Once you create your will, you must sign it in front of two disinterested witnesses who are generally not in a position to not inherit from your estate.
You can revoke or change your will as long as you are competent. If you want to revoke it, you create a new will with language revoking your previous will. If you want to make a small change to your will, you can make a codicil document. These documents must follow the same witness requirements.
A will is not effective until your death. Timing is the main difference between a will and a power of attorney. If you need someone to manage your property or help you with decisions while you are still alive, execute a power of attorney.
What Is a Power of Attorney?
A power of attorney is a legal document giving someone you name (your agent) the authority to act on your behalf. Power of attorney documents only govern when you are alive.
Two main estate planning tools are a financial power of attorney and a medical power of attorney (also known as a health care directive or living will). The power of attorney document appoints an agent or attorney-in-fact to act on financial and medical matters if the principal is incompetent or incapacitated. A power of attorney (POA) can even be used for convenience, allowing the agent decision-making authority when the principal travels.
Without these legal documents in place, if you are mentally or physically unable to make decisions, someone must petition the court for conservatorship or guardianship over your financial and medical affairs. This public proceeding requires evidence of your incompetency or incapacity. They also look at the fiduciary fitness of the potential guardian and conservator.
Types of Powers of Attorney
Power of attorney documents vary depending on state law. There are many types of power of attorney documents governing when they are effective:
- A limited power of attorney may cover a specific time period, such as a two-week vacation, or a particular transaction, such as a real estate closing. You might give your agent only specific duties. Once that period or task expires, the agent’s authority ends.
- A durable power of attorney means that the agent’s authority continues even if the principal is incapacitated. You can specify if you want the durable power of attorney to begin immediately or upon an event, such as incapacity.
- A springing power of attorney means that the agent’s authority begins upon a specific date or event.
Generally, you may want someone to help you with your financial affairs if you are unable and you may want someone to follow your health care wishes and handle medical decisions if you can’t.
Financial Power of Attorney
The financial power of attorney authorizes the agent to manage financial affairs and make financial decisions for the principal. The principal can direct the scope of authority granted under a power of attorney from a single action (limited power of attorney) to broad and sweeping authority as allowed under the law. The POA document can include the authority to:
- Pay bills and expenses.
- Engage in real estate transactions.
- Pay taxes.
- Manage investments and retirement accounts.
- Manage bank accounts and insurance transactions.
- Operate a principal’s business.
- Make gifts to third parties.
- Seek elder law or other legal advice on the principal’s behalf.
The principal also directs when a power of attorney takes effect. For instance, the principal may desire a power of attorney not to take effect until the principal becomes incapacitated or incompetent. Or the principal may want a power of attorney to take effect immediately and continue even if the principal becomes incompetent or incapacitated. Or a power of attorney may take effect only for a specific time or transaction, such as a real estate closing, or to manage the sale of a business. The power of attorney document must generally be signed by the principal and notarized.
The principal maintains the authority to revoke a power of attorney at any time, provided that the principal is competent at the time of revocation. All power of attorney authority ceases upon the death of the principal.
Regardless of the authority provided to an agent, they must always act in the principal’s best interest, keep accurate records, and avoid conflicts of interest.
As indicated above, all authority under a power of attorney terminates upon the principal’s death. The estate is then administered and distributed under the terms of the will, if there is one.
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Medical Power of Attorney, Health Care Power of Attorney, Living Will, and Health Care Directive
The name for a medical power of attorney differs among the states but covers medical decisions and directives. These power of attorney documents may be referred to as:
- Health Care Power of Attorney
- Health Care Proxy
- Health Care Power of Attorney
- Medical Power of Attorney
- Power of Attorney for Medical Care
- Medical Care Directive
- Health Care Directive
- Advance Health Care Directive
- Living Will
Sometimes they consist of two legal documents, the medical care power of attorney and health care directive or advanced directive. Sometimes the two merge into a single health care directive that contains a power of attorney within the same document. They all provide a principal the ability to direct their health care and choose a health care agent while still competent.
The medical directive spells out the principal’s wishes concerning the type and extent of medical care and end-of-life care. For instance, a principal can direct their desire to be kept alive by artificial means and what treatment they want if they have a terminal illness or end-stage condition. Again, this is sometimes a separate document or merged with an overall health care directive or medical power of attorney.
The medical power of attorney, or healthcare POA, grants the agent the ability to make medical and health care decisions for the principal following the medical directive. The agent’s authority can include selecting a nursing home or home care.
Overall, these directives and powers spell out the principal’s wishes for treatment and give authority to the agent to carry out these wishes.
Does a Power of Attorney Affect a Will?
No. A power of attorney is an estate planning tool used to manage financial and medical matters while you are living.
Upon your death, the power of attorney and any health care directive terminates immediately. The executor then distributes your estate according to the provisions in your last will and testament. Both are essential estate planning tools to use either during incapacity or death.
Do I Need a Power of Attorney?
Suppose you do not have a power of attorney set up, and you become incompetent or incapacitated and, therefore, unable to make financial or medical decisions for yourself. In that case, your loved ones must petition the court for conservatorship and guardianship. This public court hearing requires evidence of your incompetency and is time-consuming and costly.
Designate the people you want to make these decisions. Don’t leave the choice to a court.
Do I Need a Will?
If you die without a will, the court determines property distribution through intestate statutes. These state laws prioritize immediate family and do not have provisions for giving money to friends, charity, taking care of pets, or making sure unmarried partners receive a share of your estate. Again, you should decide such issues as who is a guardian for your child or who should inherit your estate, not the court.
Who Should Keep My Will?
You should keep your original will in a fireproof safe in your home or another secure location. It is usually not recommended to keep it in a safety deposit box unless your executor can access the safety deposit box. Consider providing a copy of your will to your executors or close family members.
Who Should Keep My Power of Attorney?
The financial power of attorney is a very powerful legal document because it authorizes an agent to walk in your shoes and perform the powers you authorize therein. Keep this document in a very secure location. Notify your agent that the document is in place and how to access it if necessary. Then keep it in a fireproof safe in your home or other secure location. With a medical power of attorney, living will, or health care directive, you should provide a copy to each medical provider and each agent. Keep the original in a safe place with your other estate planning documents.
How Do I Make a Will or Power of Attorney?
Our state-specific estate planning documents give you step-by-step guidance on how to sign and notarize the documents. You can have peace of mind knowing your last will and testament, power of attorney, health care directive, and living will meet your needs and honor your final wishes.