Estate Planning Mistakes - Number Twenty-Three

Estate planning is not just doing a Will. There are documents that everyone should have to address what happens if you are incapacitated or disabled. You want to make sure you have documents that take care of you while you are living.

Everyone should have a General (Durable) Power of Attorney, Healthcare Power of Attorney (to deal with physical as well as mental health) and Living Will. If you fail to have these documents and you become incapacitated or disabled, a legal guardian will have to be appointed. This is a legal process which will require a guardianship hearing before the court. You can avoid this sometime lengthy and expensive process with advance planning.

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Durable Power of Attorney

I received a call the other day from the daughter of one of my clients. Her parents have been my clients for about 5 years. The wife, an avid swimmer in her late 70s, was the caregiver of her husband who now has advanced dementia. Unexpectantly, the wife died and with her the location of the power of attorney for her husband which had been removed from the safety deposit box since she had been using it given his illness. The daughter was the alternate agent.

In my practice, I counsel my clients to maintain their documents in one of 2 places, a safety deposit box or a safe at home that is waterproof and fireproof. My clients had followed that advise. With the Durable Power of Attorney, also referred to as the General Power of Attorney, it is important to have more than 1 original, 3 is preferable. Fortunately, for my clients' daughter, I maintain one of the 3 originals. Without the power of attorney, the daughter would have had to institute costly guardianship procedures in order to handle her father's affairs. Her parents' advanced planning alleviated that expense.

It is important to seek legal advise and guidance because it is not just the preparation of documents that is important but the details of the process. Our experience dictates the importance. Leave your comments here or contact us at http://www.ythlaw.com/

Power of Attorney

I have blogged about the importance of having a power of attorney to address your financial affairs if you are ever incapacitated. More and more people understand the importance of the power of attorney but have questions about the formalities. They ask does your agent sign the power of attorney when you do? If not, when does the agent sign? Does the agent have to sign before a notary? How do I take the authority away from the agent? These are all good questions and the responses follow:

When does an agent sign the power of attorney?
The agent does not have to sign at the time that you sign your power of attorney. The agent's signature does not have to be notarized only the maker. In fact, since you only intend for your agent to use the power of attorney when you are incapacitated, then it is at that time that the agent signs and dates the power of attorney.

How do you revoke an agent's authority?
You should maintain your original powers of attorney. If you no longer want a person to serve as your agent then the powers of attorneys should be destroyed and new ones entered into. If your agent has an original power of attorney, then you must get it back and destroy it. Otherwise, you have to notify any one who may rely on the power of attorney that you have revoked your agent's authority. ALWAYS appoint someone whom you trust.

Springing Power of Attorney
There is another type of power of attorney referred to as a Springing Power of Attorney. It can only be used if a doctor has certified your incapacity and such certification must be attached to the power of attorney for it to be effective. The Springing Power of Attorney is revoked once your regain capacity.

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