Which Power of Attorney do you need?

Durable-Power-of-AttorneyWe live in a society that likes to make plans. We plan for various events in life from school, careers, weddings, retirement, vacations, to parties, and the like. Yet, over half of Americans fail to plan for the end of life. As we all know, there are two things no one can escape in life – death and taxes. However, over half of the adult population will die without a will or estate plan in place. Planning for the end stages of life is not just for those who may leave a large estate; it needs to be a priority for everyone.
In planning for the end, there are several types of documents that can be helpful for you and your family. Those include a power of attorney, durable power of attorney, durable power of attorney for health care, a living will, and a last will and testament. Not every document is necessary for each individual; however, it is likely that you would need at least one.
Below, I am going to briefly describe some of the common documents used in estate planning and if it can assist your family in finalizing your funeral arrangements.
• General Power of Attorney
– A general power of attorney (POA) grants an individual (the “agent”) authority to make decisions for you (the principal) when you are unable. A POA can be drafted to be broad or narrow in scope concerning the authority given to the agent. Any authority granted in a general POA ceases once the principal passes away.A general POA can be very helpful to your family in making various decisions while you are living, however, since the authority given in a general POA ceases once the principal passes away, this document would not be helpful to your family in making funeral arrangements.

In planning your funeral, a durable power of attorney for health care is very important. Tennessee law is very specific as to who has the rights to make final arrangements. Tennessee Coda Annotated gives priority to “an attorney in fact designated in a durable power of attorney for health care…” (T.C.A. 62-5-703(1)). If you do not have said attorney in fact or agent, the law gives a descending order of priority: spouse; majority of your children; surviving parents; majority of surviving siblings; and so forth.

Thus if you have an agent stated in the durable power of attorney for health care, only one individual will need to finalize your funeral arrangements.

This is not to say that your loved ones cannot also help in making your funeral arrangements, but it does mean that only one individual will need to sign the legal documents for the funeral home. This is very important for anyone considering cremation as their final disposition. Tennessee requires for the authorizing agent to sign a cremation authorization. So when you pass away, only the durable POA for health care would need to sign the authorization. Also, appointing a durable power of attorney of health care can ease your mind knowing that someone you trust will carry out your last wishes.
NOTE: With any of the above durable power of attorneys, you ask your attorney to draft the durable POA with the language “with rights of final disposition.” This language would indicate to the performing funeral home at your death that the agent listed does in fact have the authority to finalize your funeral arrangements, be it a traditional burial or a cremation service.
• Living Will
– A living will is a medical directive that indicates your wishes for end of life medical decisions. The living will would be used once you are unable to make decisions for yourself. Since the living will states your desires, it takes the burden of having to make the difficult end of life medical decisions off of your family. When you create a living will, make sure your primary care physician is aware of your desires and any agent you have appointed to make medical decisions for you.
– A living will’s authority ends upon death and would not be helpful in making funeral arrangements.
• Last Will and Testament
– A last will and testament devises your estate to those you choose. A last will and testament can be simple or complex in nature. You can draft a last will and testament to devise your entire estate to one individual or divide your estate among many different individuals and/or organizations.
When you pass away your property will be given to someone. If you choose not to write a last will and testament, your state rules for dying without a last will and testament will apply. This could mean individuals you do not want to inherit could take part of your estate, or someone who you wanted to inherit could receive nothing or a smaller portion than you had intended.

– Unlike the other documents, a last will and testament only takes affect once you pass away.
The above list is not comprehensive by any means. There are several other end of life and/or estate planning documents that may suit your particular need. Contact a local estate planning attorney to assist you in deciding what documents you need and setting up an estate plan.

In addition to the above documents, you can also pre-plan your own funeral. While not a legal document, this would take great stress off your family during a time of grief. To find out more about pre-planning or if we could help you with any of these legal documents, please don’t hesitate to call us.

527018_10151431170420136_1604615082_nJennifer Reed is a licensed attorney in both Tennessee and Florida and she currently serves as the in-house attorney at Williams Funeral Home & Crematory.

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