Execute a Power of Attorney Before It’s Too Late

Estate Planning, Wills And Trusts

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 at 954-515-0101 and schedule your appointment today!

Share:

Share on facebook
Share on twitter
Share on linkedin

More Posts

Jakob Legal helps a senior couple with Health Care Directives sitting together on plaid at sandy beach.

Its Medicare Advantage Season

Now is the annual opportunity to change medicare coverage. From Oct. 15 until Dec. 7, enrollees can shop Medicare’s marketplace for the prescription drug and Advantage plans offered by commercial insurance companies. They can also switch between fee-for-service original Medicare and Advantage.
And they will have plenty of choices: Next year, the typical Medicare enrollee will be able to choose from 57 Medicare prescription or Advantage plans that include drug coverage, according to the Kaiser Family Foundation.

Senior man and woman couple embracing at sunset or sunrise on a deserted tropical beach. They relay in Jakob Legal for Probate

Seniors Starting Businesses for their Contemporaries

Many entrepreneurs are successfully navigating new opportunities in serving their own peers.

Specifically, the article discusses the new career of “Patient Advocates” for the Elderly who are helping the adult or “sandwich generation” children navigate the complex and, sometimes horrific, medical system.

13 Estate Planning Terms You Need to Know

Estate planning is not just for the wealthy, it is something every adult should do. Estate planning can help you accomplish any number of goals, including appointing guardians for minor children, choosing healthcare agents to make decisions for you should you become ill, minimizing taxes so you can pass more wealth onto your family members, and stating how and to whom you would like to pass your estate on to when you pass away.

The Future of Eldercare is Bright

An organization called Hogeweykh is spreading the initiative to support all elderly individuals in living their best lives “with and despite their limitations due to dementia” with their care concept.

Please Contact Me

Skip to content