The Importance of Preparing a Power of Attorney

Scales of JusticeIn an age where checkbooks have given way to online banking and most customer service is handled over the phone, it’s still important to sit down and take care of the important things, like going to the doctor, diversifying your stock portfolio, and deciding who will act on your behalf as your agent under a Power of Attorney should the need arise.

This is particularly important for the LGBT community, and especially important for folks living in states that recognize neither same-sex marriage nor civil unions.

The purpose of a Power of Attorney is to ensure that you identify the person you want to take care of you, the person who will “stand in your shoes” in the event you are unable to act on your own due to a serious illness, injury or incapacity.

There are two types of Powers of Attorney, a limited power or a general power

1. A limited Power of Attorney is ordinarily used for a specific purpose, such as attending a real estate settlement if you are out of town and unable to attend. This type of Power is not the focus of this article.

2. A general Power of Attorney allows you to appoint an “agent” now who will take care of you in the future should the need arise. Your agent will have the legal right to act on your behalf generally and to make decisions regarding your financial affairs and your medical decisions when you are unable to do so on your own.

Most Powers of Attorney contain a provision that allows the Power to continue in effect in the event you become incapacitated. This is known as a Durable Power of Attorney, because it endures beyond your incapacity. Without a Durable Power of Attorney, the Court, after a full and ugly hearing, will need to appoint someone to be your guardian and this is an expensive and complicated legal proceeding You will have no control over who is appointed and if there is family friction, the ugly possibilities are endless.

So, whether you are fortunate enough to live in a state that recognizes your marriage and relies on your spouse to be your decision maker, or whether you choose to name a boyfriend, girlfriend, fiancée, domestic partner, family member or just a friend, the person you trust the most does not have any legal rights to act on your behalf without a Power of Attorney. And, even if you live in a marriage recognition state, you and your spouse should consider appointing an alternate agent in the event you are both in a common disaster, such as a car accident.

Another vitally important document to prepare is a Living Will. Although decisions about your health care can be made by your agent under the Durable Power of Attorney, in the event you are suffering from a terminal illness from which there is no reasonable expectation of recovery or if you are in a persistent vegetative state, the Living Will allows your health care agent to make the ultimate decision for you, i.e., whether to continue or discontinue life sustaining medical care.

Sitting down and addressing who should be your agent under your power of attorney is widely recommended, and even supported by the New York Times. The Times argues that, although complicated, the pros outweigh the cons.

Preparing a Power of Attorney with the help of a lawyer may be the best decision for you and your significant other. There are on-going court cases where a Power of Attorney proved to be important, particularly for gay couples. A Power of Attorney, will protect you (or your partner) from being discriminated against during long-term care or an urgent medical emergency.

Deciding what Power of Attorney would be best for you and your trusted souse, partner, boyfriend, girlfriend, best friend or family member is important when planning for your future.


Photo Credit: © Tmcnem

Ellen S. Fischer of the Law Office of Ellen S. Fischer has been working closely with individuals and families throughout the greater Philadelphia region for more than 20 years. Ellen received her Bachelor of Arts degree from Temple University and returned to earn a Juris Doctor degree from the Temple University School of Law. Ellen serves on a number of leadership committees and is a member of Gay and Lesbian Lawyers of Philadelphia (GALLOP). In addition to LGBTQ services, Ellen's practice areas are family law and personal injury.