When caring for a loved one, we often hear the term power of attorney. But what does it really mean and when is it necessary?
Our upcoming webinar features Elder Law Attorney Laurie Hauptman, Esq., who will walk us through everything you need to know about power of attorney, health care directives, and guardianship, and discuss when they’re necessary and how they are used. We will also explore the repercussions of not having a power of attorney, and clear up any misconceptions around the process.
Watch the video for a preview of the webinar and then visit ArborCompany.com/POA to register!
- Hello everyone. And welcome into Senior Living Live. My name is Melissa. I hope you are having a fantastic day today. For those of you who are joining us via video, or for those of you who may be listening via podcast, we thank you for finding us. Our upcoming webinar, October sixth, is entitled, Everything You Need to Know About Being the Power of Attorney for a Loved One. This is an extremely important topic. It comes up a lot in our conversations from the children or spouses of a senior who may be experiencing an illness such as Alzheimer's or dementia. Laurie Hauptman, one half of the great law firm, Hauptman & Hauptman, based out of Livingston, New Jersey, joins us for the ins and outs of this topic, and she can help us better understand a little bit more about the power of attorney and its limitations. Laurie, how are you today?
- I'm good. Thank you so much for having me.
- Yeah, we appreciate you taking the time to be with us, not only today, but for your upcoming webinar as well. First and foremost, tell us a little bit about yourself.
- Sure, so my name is Laurie Hauptman, and I practice with my spouse, Yale, which is a whole other different discussion that we can have at another time, what it's like to practice with your spouse and see them on a daily basis. I've been practicing law for 30 years. I'm licensed in New York and New Jersey. And at this point, for the last 25 years, have concentrated my area of practice in estate planning, elder law, and special needs planning. And so the power of attorney document plays a huge role in all three areas of my practice in those areas. And it's probably one of the most important documents that you can have. I love what I do because attorneys sometimes don't have very good raps. We're the butt of a lot of jokes. But the truth is, as an estate planning and elder law attorney, or when I practice special needs planning, I feel I just help people. I'm not suing anyone. I'm not divorcing anyone. I'm not bankrupting anyone. I'm simply putting a plan into place to protect somebody.
- When it comes to that term power of attorney, what exactly does it mean, Laurie?
- Sure, so in actuality, people actually say, "Are use someone's power of attorney?" And I just want to actually clarify, you actually aren't the power of attorney for someone. The document itself is called a power of attorney. What you are is the agent or proxy under a power of attorney, but it's become a very colloquial term to say that you're someone's power of attorney. You're really the agent under a document called the power of attorney. A power of attorney is a document by which the principal who is the person that's executing it, is appointing another individual or individuals to be able to perform certain tasks and have decision-making abilities. We say either an individual or individuals, because a person can appoint co-agents or they can appoint an agent and then alternate agents. And so, we just sort of dissect that with our individual clients and find out whether or not what their needs are. And this document is utilized while somebody is alive. It does not have any power once a person passes away. People don't know that. In my opinion, powers of attorney are probably the most important documents that you need, because while you're alive, if you do not have the ability to bank for yourself or file taxes, if you're even married, or file an insurance claim or handle anything that you normally would handle in a financial or a healthcare world, you need to name someone. There is no document that is a substitute for it. And if you do not have this document and somebody must do this task for you, you will have to go to a proceeding called a guardianship. And that is a court intervention where you then have to apply to the court for the appointment of a guardian. And then you have oversight requirements, reporting requirements, and it is much more costly than having a document in place.
- Yeah, well, you right there with that one answer, knocked out actually a couple of questions for me. You mentioned guardianship, which is where I was gonna go next. How is that different from power of attorney? You did a great job with that. You also dispelled some of the sort of misconceptions about what a power of attorney can and cannot do. Are there any others?
- Well, first of all, so a lot of people, for example, they run to get their wills done because they think a will is the most important document, and it is. It does dictate how your estate is going to be passed to your loved ones, who is going to administer your estate. But in most states, New Jersey, New York, Georgia, they have what's call intestacy laws where if you die without a will, there's a governing law or body of statute that indicates how your assets pass. But with a power of attorney, there is no substitute document. There isn't anything that comes into place. And why it's important is that it's the only time that you could speak while you sort of may need the care or the assistance of another individual. Now, there are two kinds of powers of attorney. There are springing where the power of attorney, or the appointment comes into play upon a certain event, such as when I become incapacitated, then Jane Doe can act as my agent and conduct these acts and also perform these decision-making. A springing power of attorney though, has the obstacle of needing a doctor, usually, and a corroborating doctor to indicate that there's a level of incapacity, which puts a barrier or extra time needed in place before decision-making can be done. I don't like springing powers of attorney for that reason, because sometimes you need something pretty emergent in an emergency situation. And sometimes you want to use a power of attorney for a good reason. I may be out of the country. I'm in a nice spa in another state. My husband, somebody comes to our house, I'm gonna give you an extreme answer, and says, "I'll give you $3 million for your house right now, sign on the dotted line." My husband could sign for himself as joint owner. He cannot sign for me unless he utilizes my power of attorney where he's named, but that's not because I'm injured or have an incapacity. It's for a good reason. So if you don't have this document, either springing or immediate power of attorney, then you have to go to the court because how is the court gonna know who you would have wanted? Somebody has to step forward. You don't know who that person's gonna be. A power of attorney is the document that allows you to actually name the person that you would like to be in that role. A guardianship, you don't have that say, somebody is stepping forward. Could it be this person that you would have named? Could be, may not be. So the guardianship is a proceeding that's involuntary, that's brought because the person either did not have a power of attorney, or, I'm gonna give you other food for thought, had a power of attorney, but it was not done correctly, which we see a lot. Or it was not done comprehensively, meaning it had boilerplate language in it, but does not have some powers that is needed, that may be a barrier now for getting certain tasks done.
- Very thorough answer.
- Sorry, I know I always throw that.
- No, you were perfect. It actually leads to the next question. You just mentioned it. Maybe it wasn't done correctly. Uh-oh, wouldn't we all hate to be in that situation right? Now people sometimes think, "Well, maybe I can go on Google and figure out how to do this myself." Okay, there are things in life that you should not do yourself. Why should people, or someone, hire an attorney who knows what they're doing when it comes to power of attorney or the guardianship situation?
- So first of all, we see do-it-yourselfers all the time. They either print it on the internet, and you could easily tell because it's completely templated. It's a couple of pages. It has some standard language that may get you to your local bank on behalf of somebody else. But it often does not have some comprehensive language that I may need for asset protection planning or for things like digital assets, meaning your Facebook account, your online banking accounts. So the idea is that, you know, you get what you pay for and often online, you don't pay for it. And so I always tell people, it could be penny-wise and pound-foolish, because you may not pay for the document, but you now will have to go to court, which is thousands of thousands of dollars to pay an attorney to represent the proposed guardian, but also represent the proposed ward. Because when I get hired, I often am hired by the family member that wants to be appointed as the guardian, but the court appoints an attorney to represent the proposed ward, at least in New Jersey. Every state has their different guardianship rules and regulations. And so you're talking about already two attorney's fees, as opposed to a few hundred dollars on a document that could be drafted. I also want to explain that you also should be careful about who you go see as an attorney. Some attorneys, or a lot, I should say most attorneys probably have some kind of templated power of attorney on their Microsoft Word computer. It's not really a secret sauce to that. The difference though is if they don't use it like we do, where we use it every day and they don't see the pushback that comes when the language is not comprehensive, they don't have the language that's needed possibly when certain tasks or powers are needed. And so not only do I see people do it wrong, where it wasn't initialed correctly, it wasn't notarized correctly. But I do see ones that are even done by attorneys that are not comprehensive enough. So this is not the time to go see your sister-in-law who does, you know, divorce, and so maybe she has some kind of document, or somebody that offers to do it, you know, your real estate attorney. Again, you may be sorry because what you need in the future, or the tasks that you need and the powers wont be there.
- Yeah, and when it comes to law in general, you really want somebody who specializes in the law that you need help with. If it's real estate, great, go to somebody in real estate law. But for something like this, you really, really need someone like yourself who deals with this on a daily basis. They see the outcomes of the documents that they have prepared and you know the ins and outs. And you know what it can look like and how it can get ugly. So, I really truly appreciate that you pointed that fact out. And a lot of people don't realize that, if they don't deal with lawyers on a consistent basis, they don't understand that not everybody will do. You really want somebody specialized. So as we get to the end of this particular interview, which I think sets up very nicely for your webinar, and of course, you'll be there to answer questions for all of our viewers. We love that so much. If somebody wants to get in contact with your firm now, how can they do that?
- So we have a website www.hauptmanlaw, H-A-U. P as in Peter, T as in Tom, M-A-N, law.com. We offer free consultations. Again, I know your webinar may be going out to other states. We are licensed in New York and New Jersey, but we primarily really practice in New Jersey. We are a resource of people that may need people in other states, because we are part of organizations that have elder law attorneys or special needs planning attorneys. But our website is filled with educational content. We really pride ourselves on having available content for people. And so you're always, you know, able to go on that. And you know, we really, one of the things that I love to do is to educate the consumer about what we do, because you have to sometimes know what you don't know, and that's really important. If you still choose to go a certain route, at least know what you don't know. And so I really appreciate you having me on, I feel like if I can get more people involved and understand sort of the benefits of having a power of attorney, which is the talk is actually called the power of the power of attorney, because it has a lot of power to it.
- Yeah. We love that. And yeah, you can't make, you could only make decisions on the information you have available to yourself. And if this is all you've got, and this is the only webinar you watch with Arbor, we hope that you become empowered to then make those decisions the proper way, and don't make any mistakes or don't go to an estate attorney or somebody else. We hope that Laurie will be able to help you in this discussion to really understand what this means and why it is important to get a professional, to help you with it. Laurie, we appreciate your time so much. Thank you for joining us today.
- Thank you for having me. And look forward to next week.
- Absolutely. Now, if you're interested in attending this particular webinar, it's really easy to do. You can head on over to our website, www.seniorlivinglive.com. There, you can register. And while you're there, feel free to check out the rest of our video content. It is available 24 hours a day, seven days a week, and it is all about senior living. As always, we appreciate you watching Senior Living Live, and we look forward to seeing you once again, October sixth.