Many people do not know what a “power of attorney” is, much less whether they need one. Adding to the confusion is that the term can refer to more than one type of document. So before we reach the question of whether married couples need powers of attorney, let’s review what these documents do.
What is a power of attorney?
Generally speaking, a power of attorney is a signed document in which you give someone else the authority to act for you or to make decisions on your behalf. The two main categories of powers of attorney are financial powers of attorney and medical powers of attorney (sometimes called “health care” powers of attorney or proxies). With either type, you can give someone broad powers to deal with all matters in that area, limited authority to deal with specific issues, or anything in between. The person you name is usually called an “attorney,” an “attorney-in-fact,” or a “proxy.” However, this person can be anyone you choose and does not have to be an attorney (lawyer) at all.
As with many legal issues, powers of attorney are governed by state law
Because of this, the names of the documents, the goals they can achieve, and even how they must be filled out depend on the laws of your state. For example, California has strict requirements regarding “warning statements” that must be printed on any form power of attorney. The Golden State also requires that powers of attorney be either notarized or signed by two adult witnesses who meet certain requirements.
Many lawyers would agree that adults need someone who can act as their power of attorney, both for financial and medical matters. We never know what the future will bring. If we become incompetent or unable to decide issues or act for ourselves, a power of attorney allows us to designate who will do that for us in advance.
If we do not choose, we are at the mercy of a court. A judge will decide who will serve in such an important role for us.
You may think that if you are married, it is unnecessary to have these documents in place. Formal, legal relationships can solve a few of the issues that may accompany incompetence or physical infirmity. For example, in most states, the next of kin may have the right to make medical decisions for you. In these cases, state law provides a list of those people in order of preference, usually starting with your spouse.
Likewise, you may believe that titling property jointly will solve problems related to potential future incompetence. Jointly titling assets can help—a little. For example, by jointly titling a bank account, you give both owners the right to make deposits and write checks. However, in most instances, joint owners of real or personal property (think cars and houses) must all agree to sell or encumber property. This means that if one spouse cannot consent, they other spouse will be limited in his or her ability to do sell or mortgage the property.
In addition, especially with the rise in privacy and confidentiality concerns, many companies and health care providers are less likely to deal with or give information to someone without explicit permission to do so.
What’s the alternative?
Potentially lengthy and costly court proceedings to name a conservator and/or guardian for you and/or your property. And when all’s said and done, the court may or may not name a person you would have chosen yourself to take care of you or your affairs.
Should you decide to pursue medical or financial powers of attorney, contact a licensed attorney in your state. Powers of attorney are important documents that must be set up correctly to protect your interests and ensure your wishes are followed.