The covenant of marriage comes with a lot of rights. There are literally thousands of rights protected by laws on federal, state and even local levels that deal with marriage and spouses. However, none of those laws make your spouse an automatic power of attorney, and if you do create a power of attorney, that relationship can supersede your spouse in many cases.
Discover what a power of attorney is below, why you might want one, and how an estate planning lawyer can help you create POA forms and other important estate documents. One question that a lot of people ask is, “do spouses automatically have power of attorney?”
What Is a Power of Attorney?
Power of attorney is a legal power you designate to another person. You do this via a power of attorney form that spells out who your designee (or agent) is and what powers you are giving to them. A POA form can also provide limitations on how and when those powers can be used or go into effect.
Ultimately, when you create a power of attorney, the person you name as agent can act legally on your behalf in whatever way you allowed in the POA estate planning documents.
When Might You Want a Power of Attorney?
Power of attorney can be specific and limited or broad. For example, you might create a power of attorney that allows someone to make any financial decisions on your behalf. They would, in theory, be able to pay your bills, negotiate financial agreements in your name, and manage your investments and bank accounts.
On the other hand, you can make a power of attorney incredibly specific so that it only works in a certain situation. As an example, a husband and wife were in the process of purchasing a home. The wife was called away for an emergency business trip during the time of the closing. She gave the husband power of attorney for the sole purpose of completing the closing.
He signed all paperwork at the closing for himself and on behalf of his wife, as he was her legal power of attorney and agent for that purpose. The POA was limited, though; the husband’s power of attorney would only work on that one occasion and didn’t exist after the fact.
Some reasons you might want to set up a power of attorney include:
- One spouse or parent is going out of the country or might be otherwise unavailable and you want to ensure the other spouse has the authority to handle a range of financial, health, or legal matters
- You want to protect your wishes for end-of-life, medical decisions, or emergency healthcare even if you are incapacitated and unable to voice them, and you want to ensure someone you trust is able to make those decisions for you
- You want to ensure your financial matters and assets are handled by a person you trust if you can’t handle them yourself
- You want to hand off legal power to someone in a very specific case, such as in the example of the couple buying a home above
Who Should You Choose as a Power of Attorney?
When choosing the person to act as your agent under a power of attorney, it’s important to pick someone who is willing, able, and likely to carry out your wishes. Many people do default to their spouse, as they trust their significant other as much or more than anyone else.
A long-term spouse also has the benefit of knowing you well and understanding the spirit of your wishes. This can make them more able to act in keeping with your wishes even if decisions arise for which you didn’t document specific instructions.
However, you don’t have to choose your spouse, and your significant other may not be the right choice in all cases. If you are both aging and you want to create a power of attorney to handle matters in case you are incapacitated, for example, an adult child or younger loved one or other family members might be a better choice.
Certainly if you and your spouse are having marital difficulties or you don’t believe they are knowledgeable or capable in a certain area, you might want to pick another durable power of attorney.
Protecting Your Wishes With an Estate Planning Attorney
When you give someone power of attorney, their authority in those specific matters may outstrip your spouse’s. This can be a way to ensure your wishes are carried out or your interests are upheld if you believe they would conflict with what your spouse might do.
For example, perhaps you don’t want certain life-saving measures if you are incapacitated. However, you believe that your spouse, who you know loves you, would be emotionally unable to make such decisions for you. In this case, you could appoint a different person as your medical power of attorney so that they can make the decision your spouse would be unable to.
As you can see, these are weighty matters that require a lot of thought. Being proactive with estate planning ensures you have the time and ability to put your thoughts into action. Consider working with an estate planning attorney to create the appropriate POA forms as well as complete other important tasks, such as making a will.
By taking the time to put your wishes in writing now, you can protect your interests and remove some burden from your loved ones in the future. Contact Katie Charlestone Law, P.C., today to find out how to get started on your own estate plans.
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