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Frequently Asked Question about a Power of Attorney in Kansas [Part II]

Frequently Asked Question about a Power of Attorney in Kansas [Part II]
December 3, 2014 weberlaw

This is Part II of our two-part blog post designed to answer common questions about a power of attorney in Kansas.  While we have attempted to answer many questions that we are frequently asked, we recognize every situation is unique.  If you have specific questions, we invite you to contact our Wichita estate planning law firm to talk to an experienced Kansas attorney.

Do my family members have options for managing my affairs and/or making healthcare decisions on my behalf if I do not create a power of attorney or an alternative estate planning instrument?

While your family members can obtain a conservatorship to manage your affairs, this is a less desirable option for a number of reasons.  First, the conservatorship will require your loved ones to incur expenses like court expenses, lawyer fees and other costs.  Second, a guardianship proceeding can result in delays in handling critical financial matters while the court process is pending.  Third, the judge might appoint someone as your conservator who would not be your first choice.

Can I use a pre-printed power of attorney from a purchased DIY book or software program?

While it might be tempting to purchase a DIY solution or pre-printed form because you can save a few dollars in the short-term, the long-term cost can be devastating.  A generic power of attorney can authorize someone to sale your home, empty your bank accounts and liquidate your other assets.  While the attorney in fact under a power of attorney has a fiduciary duty to protect your interests, it is important to have legal advice regarding the appropriate language and powers to include in your power of attorney form.  Generic forms will not be customized to fit your unique circumstances and intentions.  Further, these DIY instruments might not even comply with Kansas law.

Can businesses and banks refuse to honor a power of attorney?

If your power of attorney is properly drafted and executed, most financial institutions and other entities should recognize the authority of the document.  However, you might want to check with banks or other institutions that you want your agent to deal with prior to having a power of attorney prepared.  Some financial entities are very specific about language they want contained in a power of attorney.  Sometimes you can even provide a power of attorney in advance, so you can trust the institution will recognize the authority of your attorney in fact when the power of attorney becomes effective.

Must I get a power of attorney for healthcare decisions notarized?

While there is no requirement that a healthcare power of attorney be notarized to be effective in Kansas, there are certain formalities that must be observed when executing the document.  The power of attorney must be witnessed by two people over the age of 18.  The witness cannot be your agent if the individual is related to you by marriage, blood or adoption.  Witnesses also cannot have an interest in your estate or be financially responsible for your medical care.  While you can have the document executed in front of a notary rather than witnesses, you are not required to do so.

What constitutes incompetency or incapacity under a power of attorney?

These terms refer to a person who lacks the ability to make decisions and act upon decisions regarding property or personal decisions.  A medical professional can provide a determination that a principal is not competent to make his or her own decisions.

How does a living will differ from a power of attorney?

A living will is an estate planning instrument that informs medical providers of the types of medical procedures that you want to permit as well as those you want to refuse.  While a healthcare power of attorney appoints an agent to make medical decisions if you are incapacitated, a living will reflects your pre-determined decisions.  A statutory living will also applies to a much narrower set of circumstances.  While a power of attorney can empower your medical proxy to make all types of medical decision if you are incapacitated, living will are limited to “life-sustaining treatment” if you suffer a “terminal illness.”  This type of medical condition does not include dementia, Alzheimer’s disease or a coma.

If you have questions about estate planning issues, we welcome the opportunity to talk to you about an estate plan suited to your needs and goals.  We invite you to call us at (316) 265-7802 or submit an inquiry form through this website to schedule your initial consultation.