Durable powers of attorney help prevent disputes about your wishes. You have undoubtedly heard about expensive and highly emotional court battles over what a person “would have wanted” before he or she became incapacitated.
· The Importance of a Durable Power of Attorney in Incapacity Planning. With a power of attorney, a person, known as the “principal,” grants authority to another, known as the “agent.” The power granted can be general or limited depending on the wishes of the principal. When a durability feature is added to a power of attorney, the power granted to the agent …
· A durable power of attorney document allows the agent to make decisions either right away, or when the principal is “incapacitated.”. In the documents I’ve reviewed, the principal usually has to specify whether the agent has authority immediately, or whether the authority should “spring” into action upon incapacity.
· 1) The use of the POA will be private and thus not open to the public. 2) The document eliminates ongoing probate expenses and the legal expense of Guardianship. 3) It eases the additional emotional trauma caused by Court proceedings. The key is that the POA must be prepared and signed prior to the disability.
A durable power of attorney [part of incapacity planning] has the following aspects: Allows you to appoint someone to manage your financial affairs if you are unable to do so. It is effective once signed. It is not effective once you pass away. Can avoid guardianship. It’s very powerful; trust whomever you appoint.
If a power of attorney is durable, it remains in effect if you become incapacitated, such as due to illness or an accident. Durable powers of attorney help you plan for medical emergencies and declines in mental functioning and can ensure that your finances are taken care of.
It Can be Empowering – A durable power of attorney allows you to decide in advance who will make decisions on your behalf without removing any of your rights or transferring ownership of assets. You also get to decide how much control the agent has over your care and your assets.
Durable power of attorney for health care is a legal document that gives another person the authority to make a medical decision for an individual. The person named to represent the individual is referred to as an agent or attorney-in-fact.
The Disadvantages of a Durable Power of Attorney You will not have direct control over your agent's actions because he or she will have the authority to enter into transactions for you, without you being present.
You cannot give an attorney the power to: act in a way or make a decision that you cannot normally do yourself – for example, anything outside the law. consent to a deprivation of liberty being imposed on you, without a court order.
For patients who are incapacitated and have no advance directive in place to state their preferences for medical decisions, there are two options — a court-appointed guardian or a surrogate decision-maker.
Here are the basic steps to help a parent or loved one make their power of attorney, and name you as their agent:Help the grantor decide which type of POA to create. ... Decide on a durable or non-durable POA. ... Discuss what authority the grantor wants to give the agent. ... Get the correct power of attorney form.More items...•
We developed the following definition of a medical decision: 'A verbal statement committing to a particular course of clinically relevant action and/or statement concerning the patient's health that carries meaning and weight because it is said by a medical expert'.
With a power of attorney, a person, known as the “principal,” grants authority to another, known as the “agent.” The power granted can be general or limited depending on the wishes of the principal. When a durability feature is added to a power of attorney, the power granted to the agent survives even in the event of the principal’s incapacitation.
Do you have a durable power of attorney in place? Now is the time to execute this important legal document if you have not done so already. Unique Estate Law is here to help you do just that. Contact us today.
A durable power of attorney document allows the agent to make decisions either right away, or when the principal is “incapacitated.”. In the documents I’ve reviewed, the principal usually has to specify whether the agent has authority immediately, or whether the authority should “spring” into action upon incapacity.
This means a general durable POA is a good way to plan for the possibility that an aging adult could become mentally impaired. Most power of attorney documents will not include safeguards to reduce the risk of financial exploitation, unless you specifically request them.
Older adults can reduce the chance of being inappropriately deemed “incapacitated” by making sure their general durable power of attorney includes language specifying how incapacity is to be determined. I would recommend language that helps the agent distinguish between temporary and permanent incapacity.
Especially if the powers granted are broad — which they often are — a POA can enable the designated person (known as the “agent”) to step in and assist with finances, housing, safety, and anything else covered by the POA . A durable POA allows an agent to take action once the older person is “incapacitated.”.
That’s because if the principal and agent ever disagree, the principal gets to override the agent — unless the principal is incapacitated.
Some POA forms say something like this: “ [incapacity] may be evidenced by a written statement of my regularly attending physician or two other qualified physicians or by court order.”
So provided an older person still has capacity to complete legal paperwork and make major decisions, it’s better to complete paperwork to allow someone else to take over affairs without a complex court proceeding. A general durable POA can enable this.
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A POA is a powerful and inexpensive tool which allows a competent individual who is at least 18 years old (the principal) to designate an agent to handle their financial, business, and real estate related affairs.
The agent can be anyone that the principal trusts to manage his/her affairs, but is generally the spouse and/or children. A typical POA appoints the spouse as the agent and the child (ren) as successor agents in the event that the spouse is unable to act.
The powers can be given to the agent immediately upon execution of the POA or can "spring" into effect upon the principal's incapacity.
A competent principal can revoke the POA at any time by giving notice to the agent and preferably any institutions which the agent may have already used the POA. If the principal does not, or can not, revoke, we look at what type of POA was given.
After a POA has been properly drafted, preferably by a knowledgeable attorney, the principal needs to initial next to each power which they wish to confer upon the agent. The principal then signs the POA and has his signature notarized.
A Statutory Durable Power of Attorney is a powerful and essential tool in your estate plan toolkit, as it enables a trusted loved one to manage your finances for you in the event you are unable to do so yourself. Should your POA take effect immediately or only once you are incapacitated?
The effect is that if the POA is only effective upon incapacity, your agent may need to get a court order to establish your incapacity, which robs the POA of its convenience and cost-saving features. A comment I have heard a few times is "I don't want someone to have access to my accounts now, they could clean me out!".
To sum up, making your POA effective immediately increases its likelihood of acceptance and makes it easier for your agent to act on your behalf. Needless to say, since the agent will have a great deal of power he or she should be someone you trust closely. No one wants to imagine someone else managing their finances.
And financial institutions aren't obligated to accept POAs except in very limited circumstances (such as a military servicemember on active duty). That is, they may choose to accept a POA or refuse to accept it. And if you're a bank, your primary concern is limiting your liability.
Keeping that in mind, consider the bank's viewpoint if your named agent shows up with a POA which says it is effective only upon your incapacity. Now your agent may have to bring in a letter from the doctor stating that you are incapacitated. Easy enough if you're in a coma, maybe, and your incapacity is clear-cut.
A power of attorney is especially important in the event of incapacitation. Someone is considered legally incapacitated when their decision-making skills are either temporarily or permanently impaired due to injury, illness, or a disability.
Health Care: A health care power of attorney authorizes the agent to make medical decisions on behalf of the principal in the event that the principal is unconscious, or not mentally competent to make their own medical decisions.
An example would be if someone develops dementia as they age or is unconscious after having been in a car accident. If a valid power of attorney exists prior to the principal’s incapacitation, then the agent has full authority to make decisions on the principal’s behalf, to the extent they were granted in the power of attorney document.
If you are at all unsure of the meaning or consequences of signing the document, consult with an attorney to clarify everything first. The attorney will ensure that the document you sign is legally binding and that it conveys all of the powers you want it to, but nothing more. As with any document, the person that is signing and granting power of attorney must have the mental capacity to do so and must know what they are signing, or the document will not be valid.
If you are at all unsure of the meaning or consequences of signing the document, consult with an attorney to clarify everything first. The attorney will ensure that the document you sign is legally binding and that it conveys all of the powers you want it to, but nothing more. As with any document, the person that is signing and granting power ...
Important to note is that in order for a power of attorney to remain valid after a principal’s incapacitation, it must be a durable power of attorney. To create a durable power of attorney, specific language confirming that to be the principal’s intent must be included in the document.
If the document does not contain language saying the power of attorney is durable, then the power of attorney is considered non-durable and it becomes invalid as soon as the principal becomes incapacitated.