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How Durable Powers Of Attorney Can Help You

If you become ill or injured, you’ll need someone else to help you take care of bills, do your banking and manage your finances. A durable power of attorney means that you name someone to do these things for you if you are incapacitated or otherwise unable to do so. If you do not create a power of attorney, which is a simple but legally binding document, your family will be required to apply for a conservatorship so that these financial matters can be managed. A conservatorship is a much more costly and complex process that often lasts for the remainder of your life.

Who Makes Decisions For Me Under A Durable Power Of Attorney?

The person you name to make decisions for you is called your agent. Any competent adult can serve as your agent. This should be someone you trust, who is honest, possesses common sense and is dependable. We strongly recommend choosing someone who is relatively nearby to manage the practical aspects of helping you with your finances. You should also choose a backup agent, in case your primary agent is unavailable or unable to help you.

When Does My Durable Power Of Attorney Take Effect?

We recommend that your power of attorney take effect as soon as you sign it. This is why the document is called a ‘durable power of attorney.’ If you don’t, it will automatically end if you become incapacitated, and the court will need to appoint a conservator in order for your friends or family to access and manage your finances.

If you only want your agent to have access to your finances upon your incapacity, you can create a ‘springing durable power of attorney.’ This usually requires certification of your incapacity by two doctors. This can add time to the process and delay your agent’s access to your finances.

When Does My Durable Power Of Attorney End?

A durable power of attorney automatically ends at your death. You can also revoke your power of attorney at any time that you are alive, as long as you are mentally competent. If you get divorced and your spouse is your agent, your power of attorney is automatically terminated. Other situations, although rare, where your power of attorney ends happens when the court invalidates the document or if no agent is available. To avoid the problem of lack of available agent, we strongly recommend that you designate at least one back-up agent.

What Should I Consider When Choosing An Agent For My Power Of Attorney?

  1. Think about the relationship you have with the person you want to designate to be your power of attorney (POA). with your other loved ones? Are they strong enough to carry out your expressed wishes even if family members disagree? Choose someone who can.
  2. Does the person you want to designate have a spouse or any other person close to them who frequently overrides their decisions or manipulates them?
  3. How good is the person you want to designate at problem-solving? Will this person compromise when it is in your best interest?
  4. Does the person you wish to designate have a strong sense of ethics? Will they follow through on your wishes and put your plan first, ahead of their own personal gain. Will they do as you instruct even if it conflicts with their personal beliefs?
  5. It is logical to have the person who is designated to manage your finances and health care also inherit your estate or a large portion of your estate?

We can discuss these questions with you and find out what makes sense based on your relationships and your circumstances and other planning tools you have such as a trust.

We Ask The Right Questions. We Give Clear Answers.

At Norton Basu LLP, we want you to understand the estate planning process. We want to empower you to make the best decisions. Call 408-520-1712 and set up a meeting to move forward. There is no time like the present to plan for tomorrow. You can also get in touch with us via our website contact email. Real People. Real World Advice. Real Results.