Power of Attorney in a Will

by A.L. Kennedy
It's wiser to give power of attorney in your living will than in your last will.

It's wiser to give power of attorney in your living will than in your last will.

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Your last will explains what to do with your property once you are gone. Your living will, by contrast, explains what to do regarding your medical decisions if you are alive but incapacitated. A person with power of attorney has the ability to make medical, financial and other decisions on your behalf if you are incapacitated. Although you may give someone power of attorney in your last will, there is little point because your last will has no legal force until you are deceased.

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Managing Your Affairs

While you are mentally and physically capable, you may manage your own financial, legal and medical affairs once you reach adulthood. If you are incapacitated, however, you will be unable to manage your own affairs. Granting someone power of attorney allows them to take over managing your crucial decisions when you are still alive but unable to take care of things yourself. Although power of attorney expires automatically on your death, you may appoint an executor in your will to manage your estate after you are gone.

Living Wills

A living will is a document that explains what to do if you are still alive but incapacitated. It may include a list of the kinds of medical care you do and do not want, may state whether or not you wish to donate your organs, and may name the person you wish to give power of attorney. The person to whom you give power of attorney will be able to make any medical decisions not covered by your living will. She will also be able to pay your medical bills, manage your assets, and do similar tasks so that your life does not fall to pieces when you are unable to care for it yourself.

Last Will

Your power of attorney may only act on your behalf while you are alive and incapacitated. She automatically loses her power to manage your affairs when you die. However, once you are gone, your executor or personal representative may take over, if you have named someone in your will to fulfill this role. Like your power of attorney, your executor manages your financial and other affairs, but unlike your power of attorney, your executor manages them on behalf of you beneficiaries, not on your own behalf. An executor does not receive the power to manage your estate until formally appointed by the probate court after your death.

Power of Attorney and Your Last Will

Even when you are alive but incapacitated, the person who has power of attorney on your behalf cannot do everything. For instance, she cannot change your last will while you are incapacitated. Also, the power of attorney expires the moment you die. You may, however, choose the same person to have both power of attorney and be your executor, so that there is as little disruption as possible in who is managing your assets during your illness and then after your death.