Durable Powers Of Attorney
How We Can Help
Imagine if tomorrow you were in a car accident or overcome by an illness and unable to communicate… What would your family do? A Durable Power of Attorney will help!
You must have someone (with alternates) to call your insurance company, write checks, pay bills or communicate on your behalf.
This must be done BEFORE an illness or injury! Everyone over 18 years old must designate their “agents” to act on their behalf.
Believe me, I have sat on the edge of too many hospital and/or rehab beds dealing with distraught family members.
Protecting Your And Your
Many of my new clients initially believe prior to our first meeting that they may only need a “simple will,” without further Estate Planning.
But, your biggest concern should not be what your family will do when you pass away; but what your family can do for you RIGHT NOW!
The Power of Attorney document that we prepare for our clients is extremely effective. Take a look at this great article that shows Bank of America’s responsibilities in failing to accept a “POA.” The bank had to pay $64,000 to a family because Bank of America failed to act reasonably.
This isn’t a case I handled, but it demonstrates the strength of the document prepared under Florida Law and the penalties that can be imposed against institutions.
The POA I prepare has “teeth” and allows for your ability to make sure it is used effectively and provides for Judicial Relief if a bank acts unreasonably.
The top 10 reasons why everyone needs an attorney-prepared POA!
- Allows your Agent to speak for you if you cannot speak yourself.
- Avoids the necessity of a Court-Appointment guardianship.
- Provides immediate access to critical assets.
- Allows your family to ensure you are receiving the proper care.
- Allows your Agent to make sure your bills are being paid and to pay them if not.
- Protects you and your family from claims of financial abuse.
- Prevents questions about intent.
- Allows your agents to talk to others for you! Banks, professionals, insurances, deeds, etc…
- Allows Agents to help you plan and make you eligible for public benefits if necessary.
- Prevents delays in financial and asset protection planning
What is a Power of Attorney
A durable power of attorney is an extremely important estate planning tool, even more important than a will in many cases. This crucial document allows a person you appoint — your “attorney-in-fact” or “agent” — to act in place of you — the “principal” — for financial purposes when and if you ever become incapacitated due to dementia or some other reason. The agent under the power of attorney can quickly step in and take care of your affairs.
But in order to execute a power of attorney and name an agent to stand in your shoes, you need to have capacity. Regrettably, many people delay completing this vital estate planning step until it’s too late and they no longer are legally capable of doing it.
What Happens Then?
Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservatorship, the representative may have to seek court permission to take planning steps that he or she could have implemented immediately under a simple durable power of attorney.
This is why it’s so important that you have a durable power of attorney in place before the capacity to execute the document is lost. The standard of capacity with respect to durable powers of attorney varies from jurisdiction to jurisdiction. Some courts and practitioners argue that this threshold can be quite low: the client need only know that he trusts the agent to manage his financial affairs. Others argue that since the agent generally has the right to enter into contracts on behalf of the principal, the principal should have the capacity to enter into contracts as well, and the threshold for entering into contracts is fairly high.
If you do not have someone you trust to appoint as your agent, it may be more appropriate to have the probate court looking over the shoulder of the person who is handling your affairs through a guardianship or conservatorship. In that case, you may execute a limited durable power of attorney that simply nominates the person you want to serve as your conservator or guardian. Most states require the court to respect your nomination “except for good cause or disqualification.”
Because you need a third party to assess capacity and because you need to be certain that the formal legal requirements are followed, it can be risky to prepare and execute legal documents on your own without representation by an attorney. To execute a durable power of attorney before it’s too late, contact me atand schedule your appointment today!
“Leave A Legacy, Not A Mess”
Emerald Publications – September, 2007