Do I Really Need a Will, Living Will, and Durable Power of Attorney?

May 23, 2016

A visit to our office will always include the question, “Do you have your will, living will, and durable power of attorney in place?” Some of our clients affectionately refer to this list of questions as the “nag list.” Our intention is not to nag our clients, but rather, to emphasize the importance of having your will, living will, and durable power of attorney in good order. Even the most comprehensive financial plan can crumble without the appropriate legal documents in place.

According to a new survey by, most Americans do not have the essential legal documents needed for proper estate planning, such as wills and living wills. The survey specifically states that the majority of Americans - 55 percent - don't have a will to specify the handling of their estate after they die. Even fewer have a durable power of attorney in place.

Many people understand the importance of having a will and living will (also known as a healthcare directive).  However, many overlook the necessity of having a durable power of attorney in place. A durable power of attorney is an exclusive type of power of attorney. A durable power of attorney is distinctive from a regular power of attorney and allows the agent to act on the principal’s behalf beyond the incapacity of the principal.

What does this mean for you? 

No one other than you, the principal as described above, can withdraw or make changes to your personal retirement accounts unless you have named an authorized person, the agent as described above, in an established durable power of attorney.

Let’s use the example of a husband and wife, Joe and Mary, who are retired and living comfortably on retirement income. Joe suffers a stroke and is in a coma, and now requires additional retirement assets for his care. Mary calls their financial planner to request a withdrawal and finds that she is unable to authorize a withdrawal from their retirement accounts. 

Why would this happen?

Joe never established a durable power of attorney. While Joe was employed by a major corporation, Mary stayed home to care for the children. When Joe retired, he rolled over his retirement dollars to an Individual Retirement Annuity (IRA) and began an income stream. Due to the nature of IRA assets, only the individual whose name the assets are in can request a withdrawal. Since the retirement assets are in Joe’s name, Mary cannot withdraw from the account. If Joe had written a durable power of attorney authorizing his wife as his agent, Mary would have been able to request the withdrawal. 

If you do become incapacitated without having assigned power of attorney, the court will step in to appoint a guardian. This process might cost your family well over $1,000, not including the cost of the guardian's annual visits to court to report on your situation. Plus, the person chosen may not be someone you would have picked. This is why having a durable power of attorney is so crucial.

Most attorneys offer a comprehensive estate planning package that includes a basic will, living will, and durable power of attorney for one price. To avoid an unwanted situation, take the time today to discuss these documents with an attorney. 


If we at Kemp Harvest Financial Group can help you in any way, please feel free to contact us.

For more topics like this, check out our radio show “Retirement Plain and Simple” every Saturday morning at 8 on WNPV 1440 AM and like us on Facebook!

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