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Durable Powers of Attorney

One of the most difficult situations is when a spouse, parent or other loved-one becomes incapacitated. In addition to the emotional and family issues, this creates the need to handle the affairs of the incapacitated person. Without the proper authority this cannot be done. A fairly simple way to handle this possibility is to have a valid and durable Power of Attorney in place. This legal document names a trusted person and gives them the full authority to handle your affairs if you cannot do so.

When choosing an Agent, you should be sure that the person is trust-worthy, and capable of handling money, contracts, and other financial and legal matters. The chosen Agent doesn’t have to be an expert. The Agent can rely on the advice and services of other experts, but that person must know when to ask for help, and be ready to utilize expert help if necessary.

Even husbands and wives needs Powers of Attorney for each other. Often they have joint accounts and think they can just do everything necessary for the other. But, this is not true. A spouse does not have the power to sign the name of a spouse without a Power of Attorney in place. Jointly owned real estate (if it is sold or financed) needs the signatures of all of the joint owners. One cannot do it alone (without the legal authority to sign the other’s name).

Without a Power of Attorney, you might be forced to engage in a Probate Court proceeding (guardianship or conservatorship) to gain the authority that you need to act for your loved-one. This can be time-consuming, expensive and adds to the stress in an already stressful situation. You can avoid going to Court if there is a Power of Attorney in place.

Keep in mind that there is some risk involved with a Power of Attorney. Your named Agent will have full authority to handle your affairs and to engage in business in your name. A good and trust-worthy person will use this power wisely and carefully. A bad person (or someone who has issues such as substance-abuse) may use the power poorly, and might even steal from you. You must choose your Agent wisely. However, it is much better to have a chosen Agent in place, rather than rely on the Court to pick one for you (you know them better than a judge will).

If you change your mind, you can revoke a Power of Attorney at any time. You can create a new one with a new Agent, or just fire your current Agent. You remain in control with a Power of Attorney and you are the “boss” of your named Agent.

The power of your Agent under a Power of Attorney ends with your death. (Your Agent can only do what you can do – and you cannot do anything after you are dead). Thus, you may want a way for your affairs to be handled after your passing. This is often accomplished with a Will, but you might also want a Revocable Living Trust so there is no delay between your passing and the time that your affairs can be wrapped up.

You should visit your local Elder Law Attorney and ask about getting a Power of Attorney if you don’t already have one. At the same time, ask about a Health Care Directive, and a Revocable Trust.