Have you ever considered what would happen in the event of you falling
seriously ill or becoming disabled, so much so that you’re not able
to speak for yourself? Accompanying this thought is often the question
of who would handle your affairs or major decisions regarding your health
or business.
People often assume that, should an untimely accident like this happen, their spouse or closest family member would automatically have the right to do what is necessary and handle the situation. In Oregon, this is not the case. According to Oregon law, special authority needs to be given, and established through writing, for a friend or family member to act on behalf of another, and it must be done before the accident has occurred and while the designator is in good understanding of the situation. The most common document that can establish this authority is power of attorney.
Radio personality and actor Casey Kasem is a sad example of what can happen if a power of attorney is not designated before a major illness deems a person unable to speak for himself. When Kasem lost the ability to speak on his own behalf, legal battles construed between his wife and children on who should have the right to make decisions regarding his health and, in turn, his quality of life—a situation that could have been avoided had a power of attorney been established.
What Can Powers of Attorney Do?
Powers of Attorney are documents that are created to designate decision-making rights to a secondary individual, called an agent, in the event of a certain circumstance, which can and should be named in the document. There are two types of power of attorney: specific and general.
A specific power of attorney does just that: allots authority to an agent to act on the principle under limited, and specified circumstances. On the other hand, a general power of attorney does not limit the power given to the agent. This document can be used to authorize a family member or trusted friend to make business decisions on your behalf, whether it be making investments, handling your banking, settling claims, employing professional help, or engaging in the buying or selling of property, amongst other responsibilities.
A power of attorney document can also be temporary—say you were leaving
the country, and wanted to authorize a secondary individual to handle
your business affairs in your absence. In the circumstance, you can create
a power of attorney to grant the agent authority during that time, but
when the stated date on the document expires, the rights will be revoked.
If your power of attorney document does not state an expiration date for
the authority given, it will be considered “durable”, and
will remain in effect until the designator either revokes the right, or
passes away. Durable power of attorneys are commonly created to plan for
the event of an untimely illness or accident that might leave someone
disabled, as discussed earlier.
As of 2010, Oregon law allows for designators to create a “springing” power of attorney. This is a type of power of attorney that doesn’t have to go into effect right away—rather, it can become active upon a certain date in the future, or should a certain event occur that causes it to become effective. For example: say you want to designate a family member to make business decisions upon the event that you can no longer handle your affairs, but not prior to that point. Until the guidelines that were aforementioned come to pass, the agent will have no authority over your affairs.
It should be stated that giving an agent your power of attorney does not mean that you are negating your right to make decisions on your own behalf—so long as you are able, you can continue to do so—the only difference is that your agent will be able to as well. In addition to this, a power of attorney does not substitute for an estate plan—upon the death of the person who authorized the power, the agent will lose their authority, and will not have the right to decide how property and assets should be handled after the death.
Creating a power of attorney is not only a means of planning for the future, but it’s also a way that you can protect your family during a time of tragedy or chaos. By making the decision of who will bear the responsibility of heavy decisions on your behalf, you can help streamline the process and remove the stressful factor from loved ones of having to decide who can or should have authority over your affairs.
Why You Should Hire An Attorney to Help
Power of attorney forms are easily accessible and can be acquired from many different sources—this can be both good and bad, as this can sometimes lead to individuals filling out a document and agreeing to terms that they don’t quite understand. Signing over your power of attorney to someone can have seriously financial consequences, so it’s important to be absolutely clear on what authority you are bestowing to your agent. There are dishonest people who will try to manipulate a person into signing a power of attorney document, thus giving them control of their money or property. For these reasons, we cannot over-emphasize the importance of fully understanding the rights you’re giving to your agent, and the value in having an attorney to help walk you through every step while explaining the meaning of the document.
Pacific Cascade Legal is well-versed in Powers of Attorney, and have navigated countless clients through this process. If you’re interested in learning more, call us today at (503) 227-0200 to set up a consultation.