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FINANCIAL POWERS OF ATTORNEY FAQs

What is a financial power of attorney (FPOA)?
A financial power of attorney is a document that allows you to choose a person who can make financial decisions on your behalf when you are unable or unwilling.
Why is a financial power of attorney important?
Anyone could become incapacitated in an instant. When incapacity strikes, money and other assets may have to be moved and shifted to provide for the care that becomes necessary due to the incapacity. Without a FPOA, those assets become frozen unless a guardianship is obtained, which is extremely time-consuming, emotional, and expensive. An FPOA insures that a guardianship is never needed.
What is “incapacity”? Is it a legally defined term?
Incapacity is defined as the inability to receive, process, and/or implement information regarding one’s wellbeing. Incapacity can be temporary (such as losing consciousness during an automobile accident) or permanent (such as developing Alzheimer’s Disease). Under Wisconsin law, either two physicians or one physician and one psychologist are required to provide written affidavits as to a person’s incapacity.
Doesn’t my spouse automatically have access to all of my assets, therefore eliminating the need for a FPOA?
Many of our married clients mistakenly believe all assets are joint and marital. This is false. Every person has individually owned assets (retirement accounts, life insurance, etc.). Without a FPOA or a guardianship, these individually owned items cannot be accessed by anyone, even a spouse.
What is a guardianship and how does it differ from a FPOA?
When a person is incapacitated, he or she is unable to sign a FPOA. In order for someone else to gain access to his or her financial accounts, a guardianship is the only option. A guardianship begins when someone (usually a family member) petitions the court to be appointed as a guardian for the incapacitated person. At that time, the court makes two separate determinations. First, the court must be convinced the person seeking to be guardian will act in the incapacitated person’s best interest. Second, the court has to determine, through both medical and legal testimony, that the person is in fact incapacitated. The process to be appointed a guardian can take in excess of four months and can cost several thousand dollars. This drawn out and unnecessarily expensive process can be avoided by simply creating a FPOA while the person has capacity.
Do I have to be incapacitated before a FPOA can be used?
We can draft the document either way. Most of our married clients prefer to have their spouse immediately granted the authority to act as the FPOA, regardless of incapacity. Additionally, a person who has become too weak or old to conduct their financial affairs may want someone to serve as his or her immediate FPOA, even though he or she may not be legally incapacitated. We thoroughly discuss all options with our clients so that they can make an informed decision, given their preferences and circumstances.
Can a FPOA be amended or rescinded?
YES. Estate plans must change with life events such as birth, death, marriage, divorce and disability. The people designated under these documents now may not make sense in 20 years. We encourage clients to change documents to reflect their current preferences, and, most importantly, unlike most other attorneys, most changes to estate plans we create are complimentary. We feel cost should never be an issue in amending your estate plan.
Does the FPOA determine who controls my financial assets after I pass away?
No, FPOAs cease upon death. Your will or trust determines who controls your assets after you have passed away.

HEALTH CARE POWERS OF ATTORNEY FAQs

What is a Health Care Power of Attorney (HCPOA)?
A HCPOA is a document that allows you to designate someone to make health care decisions for you when you lack the ability to make them for yourself.
Do I have to be deemed incapacitated in order for my agent under the HCPOA to be able to make health care decisions for me?
Yes. Unlike the FPOAs, HCPOAs can only come into play when the creator of the HCPOA is incapacitated. As long as the creator of the HCPOA is capacitated and can communicate his or her own preferences, those preferences govern. Furthermore, these preferences need not be communicated verbally. The blinking of an eye or the clutching of a hand is sufficient. Anything to convey intent is enough.
What about a living will? Is that part of a HCPOA?
Yes. We incorporate components of a living will into our HCPOAs. Living wills are specific instructions to the agent under the HCPOA regarding certain end of life decisions. We can customize any HCPOA to reflect each person’s beliefs and preferences.
Why do I need a HCPOA? Can’t my spouse or child make those decisions for me?
You need a HCPOA if you want loved ones to have a say in your care. In the absence of a HCPOA, spouses and other loved ones do not have the authority to make decisions for you. Rather, hospital boards and medical professionals make those decisions. A HCPOA is the only way to guarantee that your loved ones make important health care decisions when you cannot.
Does a HCPOA allow the person I designate to consult medical professionals and review my medical records in order to make a health care decision for me?
Ordinarily, the HCPOA only permits the person designated to make decisions. We do not believe that is enough. As a result, included for free in all of our HCPOAs is a HIPAA (Health Insurance Portability and Accountability Act) authorization. These HIPAA authorizations permit your agents to consult with medical professionals and review your medical records to make the best decision for you. We think of it this way: HCPOAs give your agents the ability to make health care decisions when you are incapacitated; an HCPOA with a HIPAA authorization allows your agents to make informed decisions. An informed decision is always better than an uninformed one.
Can a HCPOA be amended or rescinded?
YES. Estate plans must change with life events such as birth, death, marriage, divorce and disability. The people designated under these documents now may not make sense in 20 years. We encourage clients to change documents to reflect their current preferences, and, most importantly, unlike most other attorneys, most changes to estate plans we create are complimentary. We feel cost should never be an issue in amending your estate plan.
I’m young and in good health, why do I need a HCPOA?
Regardless of age or physical condition, all it takes is one unfortunate moment to change one’s health permanently. We recommend considering HCPOAs the moment a person turns 18. As a legal adult, without a POA, parents and guardians lack the ability to make health care decisions for their adult children. These documents can be changed at any time, so the agents can be modified if so desired. For instance, when I was 18, my parents were my agents under my HCPOA. Now, my wife serves in that capacity. At some point down the road, my sons, now 6 and 4, may need to serve in that capacity.

WILLS/TRUSTS

I don't own much, why do I need a will?
In addition to distributing assets, a will allows you to nominate guardians for your minor children and appoint who will be in charge of making sure your wishes are complied with when you pass away.  This person is known as an executor, or a personal representative.
My parents or my child's Godparents have agreed to serve as guardians, a will is not necessary then, correct?
That is incorrect.  The only way to guarantee your guardianship preferences is to create an estate plan. Verbal and other written agreements are not enforceable. In the absence of a nominated guardian, courts are required to use the standard of “best interest of the child.”  This standard is very vague and can often lead to courts awarding guardianship to people other than who the parents would have wanted to serve.
I do not have children yet, but I know who I would want to be guardians if we had them. If I created a will, could I name guardians prospectively, and can I change them in the future.
Yes and yes!  Wills can name guardians for any present and future children.  Also, wills never expire, but can be amended at any time. We encourage our clients to review all of their estate planning documents periodically to make sure they are up to date.
We have a will from 30 years ago when our children were young. Is it still valid?
Yes.  Wills never expire, but if a will is dated, it is probably a good idea to review it with an estate planning attorney. At Melick Law, we review existing estate plans as part of our complimentary initial consultation.  We answer three simple questions regarding existing estate plans:  1) What does it cover?  2) What does it not cover? and 3) What will it cost to cover what it does not cover?  This gives clients complete information to decide what, if anything, they wish to update.
If I am named as an executor or personal representative in a will for a person who just passed away, can you help me?
Yes.  We offer complimentary consultations for anyone who has questions regarding probate and estate administration.
What is probate?
Probate is the process where a court oversees the administration of an estate.
Is probate always necessary?
No.  Probate can be avoided under many circumstances.  For instances, if a decedent leaves a surviving spouse, probate is usually avoided. If an estate has under $50,000 in probate assets, there is no probate. Finally, if the decedent has a trust, the estate bypasses probate.
What is a probate asset?
A probate asset is any asset that does not have a beneficiary. Assets such as life insurance and 401ks have beneficiary designations.  If the beneficiary predeceases the decedent, the asset must go through probate because the beneficiary designation is no longer valid. A trust would avoid this situation.
Why do I want to avoid probate?
Three main reasons.  First, it is expensive.  The average cost to probate an estate in Wisconsin is between $5,000 and $8,000.  Second, it is time consuming.  The average length is 14 to 18 months.  Third, probate is public.  Wills and other documents demonstrating the assets owned by the decedent are all publicly available. A trust would remedy all three concerns, as a trust is significantly less expensive, less time-consuming, and private.
Is a will the same as a living will?
No but it is a common misconception.  A living will relates to end of life decisions regarding health care.  A will is a document that determines who receives what upon death, who administers the estate and nominates guardians of minor children, if applicable.
Are wills filed with the court while I am alive?
No.  While wills can be filed with courts prior to death, this practice does not happen very often.  Customarily, our office retains an electronic copy of your estate planning documents and we provide our clients with both an original and a copy set of all estate planning documents.
My neighbors have a trust? What is a trust and how does it differ from a will?
A trust operates very similarly to a will, except that it avoids probate.  It allows you to customize distribution, nominate an executor (known as a trustee), and to nominate guardians for minor children.  The main difference is that regardless of the value of the estate, probate is avoided when there is a trust.