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How powerful is a power of attorney in time of need?I can answer this question from multiple perspectives:I have been been an estate planning, probate and elder law paralegal who has prepared powers of attorney under attorney supervision for many clients, and have also prepared pleadings to open conservatorships/guardianships in probate courts;I was appointed and acted as power of attorney for my elderly parent and understood their use, thanks to my legal experience preparing same, and, later, experiencing their operation first hand in the real world; andWith my attorney I have created my own estate plan which includes financial and medical durable powers of attorney (“GDPOA and MDPOA,” respectively, or, collectively, “POAs”).In any power of attorney, the person, called the “principal,” creates the document and designates another person(s), the “agent,” to act in his/her stead if s/he cannot. The principal can include many or few authorizations under which his/her agent(s) can act; these authorizations are called “powers.” Hence, the title of the document.There are different forms of powers of attorney for different purposes. I will write about financial and medical powers of attorneys as part of estate plans.As paralegal on many estate planning cases in an estate planning, probate and elder law law firm, I prepared under attorney supervision many GDPOAs and MDPOAs. The teaching is these documents are important parts of a good estate plan: they anticipate the possibility the principal might one day become incapacitated and lack capacity to make his/her own financial or medical decisions; in the case of a GDPOA the principal may be unable or unavailable to complete such ordinary tasks as writing checks.The benefit of creating POAs is the principal has designated a person(s) to make decisions for him/her and left instructions for carrying out these decisions. Absent POAs if a person is deemed incapacitated and lacks capacity to manage his/her assets and affairs effectively and is deemed unable to make medical decisions for him/herself, and urgent decisions must be made for the person, conservatorship/guardian proceedings will have to be opened in probate court. Opening a conservatorship/guardianship proceeding means the court will appoint someone to serve in these capacities. It also means the person is now a ward of the court. It also can mean a stranger might be appointed as conservator/guardian for the person. It also means the conservator/guardian will have to submit periodic reports and accountings to the court.Conservatorship/guardianships involve some measure of litigation. These proceedings truly require the services of an attorney. They are expensive and, at least under Colorado law, the incapacitated/protected person’s estate is usually charged attorney fees for having a conservator/guardian appointed.This litigation is often involved and contentious. The conservator/guardian the court appoints for the incapacitated/protected person may be a professional conservator/guardian whom the person has never met. Very important is professional conservator/guardians are EXPENSIVE; they, too, are paid from the protected/incapacitated person’s estate.POAs in most situations avoid these court proceedings: after principal is determined to be incapacitated (which may require a doctor’s letter), the agent under a GDPOA steps in the shoes of his/her principal. S/he can become a signer on the incapacitated person’s bank accounts. The agent can deal directly with such entities as incapacitated person’s credit cards, utilities providers and the like. These tasks can be accomplished smoothly and especially if a good attorney prepared a good POA.Under a MDPOA the agent also steps into the shoes of the principal: s/he can make medical decisions for the principal and deal with principal’s medical providers. Such decisions include but are not limited to consenting to medical treatment for the principal, hiring/firing caregivers and, very importantly, arrange for placement of incapacitated person in assisted living, skilled care, nursing home, etc.Finally, as agent under a MDPOA (along with an advance directive) s/he can make end of life decisions on behalf on the principal.It is important to emphasize agents under POAs must always make decisions in their principals’ best interests. They have a fiduciary duty under the law to exercise the highest care possible of their principals’ estates; an even higher standard of care than for their own assets.It is extremely important to emphasize POAs are neither absolute nor indefinite. The principal can revoke his/her POAs at any time. S/he can then create new POAs and appoint new agents. Or principal can opt not to have POAs altogether. At principal’s death, authority granted agents under POAs end.It is possible agents under POAs can abuse their powers. E.g., from time to time agents under DPOAs drain their principal’s bank accounts and wrongly dispose of their assets. These actions are illegal. Agents could face criminal charges and be punished under the criminal justice system. For this reason, good estate planning attorneys will always advise clients who create POAs to chose their agents with care; after all, agents have easy access to their principals’ assets.My elder law firm schooled us extensively on the absolute necessity of having powers of attorney. Unfortunately, I experienced first hand how POAs operate.My elderly parent appointed my agent under both of his/her POAs. The time came when my parent could not longer make effective decisions regarding his/her financial affairs nor could s/he make effective medical decisions which were in his/her best interests. So, as my parent’s agent under her DPOA, I became a signer on his/her checking account. I became authorized to speak for and act regarding my parent’s utilities and credit card accounts.With the advice from my parent’s medical caregivers, as agent under his/her MDPOA I determined my parent had to be placed in assisted living. And, eventually, with advice from my parent’s caregivers and his/her professional case manager whom I hired to assist me, I determined my parent required hospice care.Absent powers of attorney I would have had to petition the probate court to be appointed my parent’s conservator and guardian. Being appointed would have been a major and very expensive process. It would have depleted my parent’s resources and, most importantly, left less money available to pay for his/her nursing home care.Being agent under my parent’s DPOA and MDPOA avoided this mess.Therefore, based on my experiences as a legal professional who has prepared estate plans including financial and medical powers of attorney, having acted as agent under both types of powers of attorney, and having created my own powers of attorney, I can say that clearly a power of attorney(s) is/are very powerful in time of need. Discuss your need for them with an attorney.

What are powers of attorney?A power of attorney (“POA”) is a written instrument created by a person, the principal, giving another person, the agent, authority to act in his/her stead if s/he cannot. The principal can include in his/her instrument as many or as few authorizations under which his/her agent(s) may act as s/he deems appropriate; these authorizations are called “powers.” Hence, the title of the instrument.There are different of powers of attorney for different purposes. I will write about financial and medical durable powers of attorneys as part of estate plans.As paralegal on many estate planning cases in an estate planning, probate and elder law law firm, I prepared under attorney supervision many General Durable Powers of Attorney (“GDPOA”) and Medical Durable Powers of Attorney (“MDPOA”); “durable” meaning the instruments remain valid even if the principal becomes incapacitated as defined in the instruments and by law.The teaching is these instruments are important parts of a good estate plan: they anticipate the possibility the principal might one day become incapacitated and lack capacity to make his/her own financial or medical decisions; in the case of a GDPOA the principal may be unable or unavailable to complete such ordinary tasks as writing checks.The benefit of creating POAs is the principal has designated a person(s) to make decisions for him/her and left instructions for carrying out these decisions. Absent POAs if a person is deemed incapacitated and lacks capacity to manage his/her assets and affairs effectively and is deemed unable to make medical decisions for him/herself, and urgent decisions must be made for the person, conservatorship/guardianship proceedings for the person will have to be opened in probate court.Opening a conservatorship/guardianship proceeding means the court will appoint someone to serve in these capacities. It also means the person is now a ward of the court. It also means the conservator/guardian will have to submit periodic reports and accountings to the court.Conservatorship/guardianships involve some measure of litigation. These proceedings truly require the services of an attorney. They are expensive and, at least under Colorado law, the incapacitated/protected person’s estate usually pays attorney fees for having a conservator/guardian appointed.This litigation is often involved and contentious. The conservator/guardian the court appoints for the incapacitated/protected person may be a professional conservator/guardian whom the person has never met. It is important to know that professional conservator/guardians are EXPENSIVE: they charge for their services; they, too, are paid from the protected/incapacitated person’s estate. The point is fees attorneys and professional fiduciary fees can quickly deplete the person’s estate (though a POA might permit the agent to charge reasonable fees to the person for his/her time).POAs in most situations avoid these court proceedings: after principal is determined to be incapacitated (which may require a doctor’s letter), the agent under a GDPOA steps in the shoes of his/her principal. S/he can become a signer on the incapacitated person’s bank accounts. The agent can deal directly with such entities as incapacitated person’s credit cards, utilities providers and the like. These tasks can be accomplished smoothly and especially if a good attorney prepared a good POA.Under a MDPOA the agent also steps into the shoes of the principal: s/he can make medical decisions for the principal and deal with principal’s medical providers. Such decisions include but are not limited to consenting to medical treatment for the principal, hiring/firing caregivers and, very importantly, arrange for placement of incapacitated person in assisted living, skilled care, nursing home, etc.Finally, as agent under a MDPOA together with an advance directive s/he can make end of life decisions on behalf on the principal.It is important to emphasize agents under POAs must always make decisions in their principals’ best interests. They have a fiduciary duty under the law to exercise the highest care possible of their principals’ estates; an even higher standard of care than for their own assets.It is extremely important to emphasize POAs are neither absolute nor indefinite. The principal can revoke his/her POAs at any time. S/he can then create new POAs and appoint new agents. Or principal can opt not to have POAs altogether. At principal’s death, authority granted agents under POAs ends.It is possible agents under POAs can abuse their powers. E.g., from time to time agents under DPOAs drain their principal’s bank accounts and wrongly dispose of their assets. These actions are illegal. Agents could face criminal charges and be punished under the criminal justice system. For this reason, good estate planning attorneys will always advise clients who create POAs to chose their agents with care; after all, agents have easy access to their principals’ assets.My elder law firm schooled us extensively on the absolute necessity of having powers of attorney. Unfortunately, I experienced how POAs operate first hand.My elderly parent appointed me as his/her agent under both of her POAs. The time came when my parent could not longer make effective decisions regarding his/her financial affairs, nor could s/he make effective medical decisions which were in his/her best interests. So, as my parent’s agent, I became a signer on his/her checking account. I became authorized to speak for and act regarding my parent’s utilities and credit card accounts. With the advice from my parent’s medical caregivers I determined my parent had to be placed in assisted living. Eventually, with advice from them and his/her professional case manager whom I had hired to assist me, I determined my parent required hospice care.Absent powers of attorney I would have had to petition the probate court to be appointed my parent’s conservator and guardian. Being appointed would have been a lengthy, major and very expensive process. It would have depleted my parent’s resources and left less money available to pay for his/her nursing home care.Being agent under my parent’s DPOA and MDPOA avoided this mess.Based on my experiences as a paralegal who has prepared estate plans including financial and medical powers of attorney, having acted as agent under both types of instruments, and having created my own powers of attorney, I can say that, clearly, a power of attorney(s) is/are very powerful in time of need. Discuss your need for them with an attorney.

Reports that the Queen is planning to invoke the Regency Act 1937 when she turns 95 have spread quickly across a number of news sources, primarily between February and April 2019.At this stage nothing is known about future plans for a regency or otherwise, and it is important to bear in mind that these are now unprecedented circumstances—an age in which people live far longer than any time of the past passing of a sovereign; and an age in which it is more likely a person will experience mental or physical infirmity in their final years.We are therefore likely to see something different from past arrangements, although what form that difference will take is unknown, and it is unlikely to be as described in the reports.Reason these reports are probably wrong: almost all of the media reports about a supposed plan for the Queen to invoke a regency are broadly inaccurate about the Regency Act, how it is instituted, the role of working royals, and what happens in the event of a regency.It is helpful to address these, and to clarify some of the inaccuracies, before showing how it is possible both an abdication or a regency might be less likely than the use of the third option: Counsellors of State.[A] Media accuracy? Check the sourcesThere are three reasons we know there is a problem with this information: (1) None of the reports appear in the more credible media outlets in the United Kingdom (e.g., The Times; the BBC). Most of the articles are in the Daily Mail, The Express, the International Business Times, and carried internationally in non-selective media such as news.com.au, and Yahoo, etc. This is very telling. (2) No credible sources are named except persons who claim to be ‘royal experts’ (but who are not constitutional lawyers, heraldry officers, representatives of Buckingham Palace, etc.). (3) Claims about ‘un-named courtiers’ as sources are also probably untruthful, given present Buckingham Palace staff are extremely unlikely to leak plans as significant as these.[B] Factual inaccuracies about Regencies in the reportsHere is a small list of some of the factual inaccuracies that can be read across many of the reports.1. That the Queen will, at 95, ‘trigger’ the Regency Act. Actually, there is no legal mechanism for the Queen to ‘trigger’ or even ‘command’ a regency, and it is not her decision. Indeed there is some considerable question whether she would have any legal say in the matter at all. Under the Regency Act 1937, it is triggered if she is declared “totally incapacitated” meaning “by reason of infirmity of mind or body incapable for the time being of performing the royal functions”. Only a small number of people can declare her as incapacitated: The Lord Chancellor, the Speaker of the House of Commons, The Lord Chief Justice of England, the Master of the Rolls, the consort. A minimum of three of these people must sign a declaration stating that she is incapacitated, and the declaration is then delivered to the Privy Council and the governments of the other Commonwealth realms. Once this condition is fulfilled, Charles would be declared regent under the Act, and would have all the powers of the sovereign (except the ability to assent to any legislation that affects the succession, otherwise all else). While we can assume that the present sovereign may request a regency by requesting she be found infirm and handing over medical evidence, the five people involved can only do so on the basis of evidence and not because the sovereign herself has set a particular time or date. It is therefore very unlikely to happen the way these reports have described.2. That in two years’ time the Regency Act 1937 will be “brought in through Parliament”. The Act does not need to be brought to Parliament again and Parliament does not need to be consulted (only the governments of the other Commonwealth realms). It is an approved piece of legislation that went through the parliamentary process, was voted upon, and received royal assent all the way back in 1937. The only time Parliament would wish to see it again is if it proposed amendments to the Act, which is certainly not on the cards at this time. The very reason this Act exists is so that Parliaments do not need to be called in order to invoke a regency. I would question the sources about this rumour, since this is a basic part of how legislation works.3. That once a regency is in place, Prince Charles will be known as “The Prince Regent”. This is not correct. The Act that made George IV Prince Regent actually stated this would be the name under which he signs declarations once he is regent. This Act expired after the death of George III. The 1937 Act does not specify what special name—if any—will be used by the regent. It is currently believed that no special name would be used, Charles would be referred to as “the regent” [as a role or responsibility] but will gain no special title and will still be addressed as HRH The Prince of Wales. That is, in the event of a regency during the present reign, all participants will continue under their present names and titles unless something otherwise is decided in advance.4. That Prince Philip will become the Queen’s guardian in the case of a regency. Unlikely and not something which is legislated in the Act. It is unclear from where the media sources are gaining this information, and it would be questionable whether Philip will himself remain without infirmity to a standard suitable to act on behalf of the sovereign on personal matters. I would be very surprised if there was no existing living will to ensure clarity over who had medical responsibility for the sovereign should it be needed and it would be likely to include reference to the circumstances of a regency. In short, the Regency Act does not cover all these bases for the obvious reason that it was written at a time prior to the contemporary form of powers of attorney, living wills, etc.5. That Prince Philip is essential to “passing” the Act, plus 2 others. See #1 and #2 above. Any three of the named individuals can declare the Queen’s “total incapacity” according the Act, and no it does not need to “pass” parliament. This is a mistake on the part of the writers of several of these articles who have misread the legislation (or briefing notes acquired from elsewhere).[C] Misunderstandings related to the duties of members of the royal familyMany of the articles suggest that a transition has been underway towards a full regency, whereby Charles has been taking over certain activities to “learn the ropes”, most citing his taking on (i) international state visits, (ii) attendance at state dinners, (iii) performing investitures of medals and orders, (iv) undertaking other activities.All working royals are directly representing the sovereign and carry out responsibilities in her name, and have done so since the commencement of Elizabeth’s reign in 1952. (This work is separate from the private or voluntary patronage of charities, etc. of any royal family member, whether a working one or not). A working royal is effectively on the payroll (paid out of the Queen’s income from the Duchy of Lancaster), usually provided with accommodation (a country house and apartments in Buckingham, Kensington or St James’ Palace) and their daily activities are recorded on the Court Circular. Different from the charitable works of ordinary royals (e.g., Eugenie, Beatrice, etc.), the working royals do some of the following on behalf of the Queen:attend opening of buildings, exhibitions and events, laying dedication stones, hosting events to commemorate important anniversaries of various organisations public and private organisations;serve as honorary military heads for various regiments, often as a colonel-in-chief and engage themselves inspecting troops, hearing reports, giving medals;make community ‘visits’ on behalf of the Queen, representing her ‘out and about’ in the community;attend and participate in state dinners, entertaining foreign dignitaries and hosting events that bring together the political and state participants of many different countries, their ambassadors, etc. Non-working royals are not expected to attend such events and are usually not invited.they are regularly deployed overseas by the British government’s Foreign office for state visits. During a state visit they will participate in a large range of activities, events and meetings on behalf of the United Kingdom, usually in a programme that is designed in collaboration with the Foreign office.In other words, many of the activities that these articles claim the Queen has slowly been devolving to Prince Charles have—for a very long time indeed—been undertaken by the members of her family who are working royals.What has, however, been delegated to Charles increasingly is not the state dinners, state visits and other activities, but the constitutional activities which includes advising and being advised by ministers, engaging in discussion related to royal assent of legislation, and undoubtedly reading and responding to ministerial dispatches in the ‘red boxes’.The delegation of the constitutional responsibilities (as opposed to any state, community, representative or charitable activities that are already handled regularly on her behalf by working royals) is the real and proper indication she is slowing down her activities in something akin to ‘semi-retirement’.[D] Alternatives to regency I: abdication (unlikely)Several of the articles suggest that there are two alternatives for the Queen as a form of ‘resignation’ or ‘retirement’, either a regency or abdication. Interestingly, many of the same claims made here about a regency were made two years earlier when rumours circulated that the Queen was planning to abdicate when she turned 95.The reasonable perspective is that abdication is unlikely for four reasons: (i) there is no existing procedure, legislation or mechanism for abdication, and can only be with Parliament’s approval and the drafting of new legislation; (ii) abdication opens a zone of instability for future sovereigns (the possibility that people could encourage their elected legislators to lobby for a forced abdication of a later sovereign using this as precedent); (iii) the constitutional difficulties any brokering of abdication might create for the government of the United Kingdom; (iv) the sheer difficulty of ensuring in advance the agreement of all necessary parties, which includes the governments of her other realms. These are the important reasons why abdication is unlikely.Often, these articles and many commentators claim that the Queen pledged never to abdicate and cite her South Africa speech (21 April 1947, her 21st birthday): “I declare before you all that my whole life whether it be long or short shall be devoted to your service and the service of our great imperial family to which we all belong.”In fact, the Queen here says nothing about abdication and does not define service as being sovereign. This was five years before she became sovereign, which itself at the time was very much unexpected.The Queen was also addressing the Commonwealth (or what soon became the Commonwealth of Nations), as well as explicitly “young people” of her own age.It is more effectively read as an oath of allegiance to the Commonwealth, which today includes both realms of which she is sovereign and other countries which are members but for which she is not head of state. In retrospect, she has upheld this oath to continue service for the Commonwealth and to foster relations and cooperation between the different member nations.The speech itself should not be taken to indicate that there will be no regency (not her choice) or that she will never abdicate (unlikely); rather her coronation oath deals with the latter and the former was not conceived.In other words, the unlikelihood of abdication has much more to do with the constitutional difficulties it would bring rather than a radio declaration that was taken on a completely different topic addressing a completely different crowd. The use of this declaration in the media reports is, at best, unthinking.[E] Alternatives to regency II: counsellors of state (much more likely)While most of these reports claim first that the Queen will never abdicate, and secondly that she has already planned for a regency, they present these as the only two forms of alleviating her of responsibilities and duties.What they have neglected is a third form—Counsellors of State. These are created under the same Regency Act 1937 to assist the sovereign in times of need, infirmity or absence. They have been used regularly (e.g., if the Queen is unwell or overseas or on holidays).Counsellors of state—two who must act together—are appointed at the request of the sovereign for any situation in which the sovereign is incapacitated (but not so incapacitated to justify a regency) or abroad. Counsellors of state are always: the consort of the sovereign, and the first four people in the line of succession who are over the age of 21. Presently, it is Prince Philip (retired), Prince Charles, Prince William, Prince Harry and Prince Andrew.Counsellors of state have, according to the Act, “all powers and authorities belonging to the Crown, whether prerogative or statutory”. Once appointed (by letters patent, for whatever term is agreed and whatever limitations are imposed in those letters) they can give royal assent to bills, or any other activity the sovereign would usually undertake.Unlike a regency, the appointment of Counsellors of State does not invalidate the sovereign’s rights. She remains fully sovereign and can step in and override their decisions at any time. (In the case of a regency, she is absolutely removed from any of her powers until the regency is ended).This has been the norm for supporting the sovereign in infirmity without the indignity of the provisions that appoint a regency.It can reasonably be assumed that this will continue, and that this may be the most sensible and convenient approach to managing royal affairs in the period after the Queen turns 95. There is no time limit on Counsellors of State and there is no limitation from the Queen deciding to appoint them for a longer period. Indeed, they can be appointed on a rotation or any other framework for equity. It may even make sense simply to appoint Charles and William as the next two in line to the throne on an extended, renewing basis.[F] Changing timesIn short, while abdication is extremely unlikely although for reasons different from those given in the reports; and while a regency is only somewhat likely, there is a stronger likelihood that continuing the practice of using Counsellors of State to delegate the constitutional functions of the Queen is the more likely mechanism for her (semi-)retirement.However, these are very different times, an era in which we are seeing the oldest British monarch, and a time in which infirmity for a longer period of old age is more likely.So when we assume abdication is impossible or a regency less likely, we still have to acknowledge that the royal family’s practice has often been to innovate and adapt to changing times, and that might include the introduction of abdication as a form of retirement.Ultimately, we don’t know, but we should be very careful about listening to rumours given in low-grade media publications that are full of historical, constitutional, legal and practical inaccuracies.