Powers of Attorney

Powers of Attorney

I was told that since I have a multiple sclerosis I should sign an general power of attorney and not use a springing power. What does this all mean and why and how is it different from the power of attorney a lawyer prepared for me years ago before my diagnosis?


Let's define some of the jargon to clear this up. Then we'll give you some planning ideas. Remember, the laws governing powers of attorney vary by state so ultimately you need to go to an estate planner in your state. You probably should start with the attorney that helped you initially and see if he or she can guide you.

  • Power of attorney - a legal document in which you designate a trusted person, called agent, to handle legal, tax, financial and related matters for you if you cannot do so.
  • General power - a very broad power that gives the agent authority to transact almost any type of business for you. The opposite is called a special power, which only authorizes an agent to do a specific act, such as complete a house closing you have scheduled if you will be out of town, as an example.
  • Springing power - a power that only becomes effective if you are disabled. Springing powers raise issues for everyone in that the agent has to meet certain tests to prove you are disabled before acting. That can be a real impediment, especially if quick action is required. That being said most people seem to prefer the use of springing powers ("Why give my kid the right to sign my checks today?").
  • OK....now for a few thoughts. Since you have a chronic illness, Multiple Sclerosis, you really need to tailor your planning and documents to reflect YOUR (capitals intentional) experience and likely disease course. MS, and many chronic illnesses have considerable variability in how they affect each person and the course the disease will take for each. And let's be optimistic there is a lot of exciting research into cures for MS, PD and a host of other illnesses. If you use "standard" planning and documents it might not address your real needs or your specified experience with your disease.

    Many lawyers recommend that anyone with a health issue not use a springing power (many lawyers recommend that one one use a springing power because of the hassles noted above, but let's leave that discussion out). They recommend an immediate power because if you have a significant health issue you will need someone to handle financial and other matters for you. So make the power immediate. There is logic to this and depending on the person's circumstances, disease and likely disease course, this might be the right answer. It also requires that you have someone trustworthy for this important role (consider a revocable living trust with a bank or trust company as co trustee if you can afford it -- that is by far the best approach to this issue). However, MS is different than many other chronic illnesses. Unlike Alzheimer's disease which will eventually lead to substantial cognitive issues (dementia), most people with MS don't have any cognitive issues and of those that do they are not in most cases as severe as in advanced Alzheimer's and certain other diseases. So you may not have to cede complete control now, or ever. But, cognitive issues do occur and protecting yourself before you need it is important. So the recommendation to have a power of attorney is correct, but do you really need to change the existing one? Perhaps not.

    Another consideration that is somewhat unique to MS is the occurrence of attacks that cannot be predicted (although those with ulcerative colitis might experience attacks as well). You might consider a hybrid approach. Use a limited power of attorney giving someone the immediate right to sign checks, pay bill, etc., but not the broad rights to make gifts, sell your house, etc. This way, if you experience an unexpected attack, someone will be able to act as your financial agent or POA immediately to help with issues that might not be able to wait for your recovery. If you recover, you can resume management of your affairs. If you do not, then you can have a more common springing power of attorney that can be triggered just like anyone not living with MS or another chronic illness.

    The key is there are lots of options and flexibility. You need to have your lawyer craft a plan tailored to YOUR situation, not some generic understanding (or misunderstanding) of what Multiple Sclerosis or chronic illness generally (what might that even mean?) is about. This will require more effort, tough decisions and money for you, but the end result will be far safer and better.

    For more info: There is a lot of material on powers of attorney in the general estate planning section of the website and the Q&As there that will help you. Look at the forms in both the general estate planning and chronic illness section. There is also a video on chronic illness planning and a separate video on powers that should give you more information. Finally if you go to the Demos Health website you can purchase a book on estate planning for people living with chronic illness and disability which will help you and your lawyer.

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