At some point in your adult life, you have probably heard someone mention the need for a power of attorney to help Mom with her financial affairs or maybe you are up in age yourself and want someone to help you with certain matters in the event you become incapacitated and are unable to do so. A power of attorney is a very important legal instrument that can help in both of these scenarios as well as aid in your estate planning decisions.
First, it is important to understand what a power of attorney is and what it can help you accomplish. Simply put, a power of attorney is a legal document which gives one person (the “attorney-in-fact” or “agent”) the power to act on behalf of another person (the “principal”). This attorney-in-fact can be given broad or limited authority to make legal decisions about the principal’s real property, finances or medical care.
Powers of attorney come in many different forms. There are 4 main types of powers of attorney. Those are the limited, general, durable, and springing power of attorney.
* LIMITED: A limited power of attorney typically gives someone else the power to act on your behalf for a very limited purpose. An example of this could be where you give someone the right to sign a real estate deed for you when you are out of town.
* GENERAL: A general power of attorney is a broad document which gives your attorney-in-fact all the powers and rights that you have yourself. An example includes where you give your attorney-in-fact the right to sign documents for you, pay your bills and conduct financial transactions on your behalf. You could use a general power of attorney if you were not incapacitated but still need someone to help you with financial matters. A general power of attorney ends on your incapacitation or death unless you rescind it before then.
* SPRINGING: Like a durable power of attorney, a springing power of attorney can allow your attorney-in-fact to act for you if you become incapacitated but it does not go into effect until you are incapacitated. If you are using a springing power of attorney, it is very important that the standard for determining incapacity and what triggers the power of attorney are clearly set out in the document itself.
* DURABLE: A durable power of attorney can be general or limited in scope but it remains in effect after you become incapacitated. Without a durable power of attorney, if you become incapacitated, no one can represent you unless a Court appoints a conservator or guardian. A durable power of attorney will remain in effect until your death unless you rescind it while you are not incapacitated.
While each of these powers of attorney is equally important and beneficial, the focus here will be on the Durable Power of Attorney. The durable power of attorney is a very important estate planning instrument. A durable power of attorney is typically used when (1) you want to appoint someone to manage your finances if you become incapacitated; (2) you want to assign an agent to act on your behalf if you become legally incompetent; and (3) you want to assign an agent to care for financial matters now and when/if you become incapacitated.
If you become incapacitated and do not have a durable power of attorney in place, it can be very difficult for your family members to handle your affairs. In fact, without a durable power of attorney, no one can act on your behalf unless they seek a guardianship or conservatorship with the Court. This can be a time-consuming and complex process that can create more work (guardian or conservator must provide regular reports to the Court) for the family member that is tasked with taking care of your affairs.
When choosing an attorney-in-fact/agent (the person you choose and name to serve on your behalf), it is important to choose this person very carefully as they will have a lot of control over your finances and important decisions. You should make sure this is someone you trust completely and who would act in your best interest. A power of attorney can name one agent or it can require two or more agents to act together. However, know that naming more than one agent could set up potential conflict or cause the persons serving as co-agents to seek court intervention to resolve any dispute.
A question that typically comes up when drafting a power of attorney is “should you record your power of attorney?” Usually, powers of attorney do not need to be recorded. Recording a power of attorney does not affect the validity but a power of attorney does need to be signed by the principal, witnessed, and acknowledged before a notary public in order to be valid.
Should you become unhappy with your attorney-in-fact/agent, you may revoke the power of attorney at any time. Your current power of attorney should state that any “old” or previous powers of attorney are revoked, but you should also put this revocation in writing. This revocation should include your name, a statement that you are of sound mind, and your wish to revoke the power of attorney. You should also specify the date the original power of attorney was executed and the person you selected as your attorney-in-fact/agent. Once this is done, sign the revocation and send it to the old agent and any institution or agency that has a copy. If you do revoke your power of attorney, it is important to have a new power of attorney in place.
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