Durable Power of Attorney
Appointing a trustworthy and competent agent through a Durable Power of Attorney is an important step in proper Estate Planning.
These are the questions we get most often regarding Durable Power of Attorney:
What is a Durable Power of Attorney?
A Durable Power of Attorney is notarized documentation by which one person, the principal, grants another person the authority to act as agent or attorney on their behalf. Often, a Durable Power of Attorney is prepared for the event of the principal becoming incapacitated and unable to make decisions on his or her own, such as with mental disability or illness.
Why should I consider a Durable Power of Attorney?
Appointing an agent to act on your behalf is a much better solution in the event of the incapacitation or disability than a court-appointed guardian or conservatorship. A court-appointed guardianship is complex, tedious, expensive and requires judicial proceeding, whereas appointing an agent is a relatively simple process.
Even if you don’t have significant assets, preparing a Durable Power of Attorney is critical. There are many legal decisions to be made in the event of an incapacitation, including applying for disability coverage or income benefits, amending retirement plans, signing tax documents, selling a home or other large asset, hiring legal representation, and much more.
What can I authorize an agent to do in my place?
You can authorize a Durable Power of Attorney to do almost anything you would do yourself, including managing bank accounts and bills, overseeing a business, buying and selling real estate, hiring lawyers or accountants, making gifts, asset management, and more.
Certain powers cannot be transferred to the agent, such as editing or revoking a will, contracting a marriage, voting, or changing insurance beneficiaries.
What characteristics should I consider in selecting my agent?
Honesty and trustworthiness are the two most important qualities in an agent. Remember: if you are incapacitated, the agent has the power to act without supervision.
You will also want to ensure the agent has the time and capacity to fulfill this important role, as well as the knowledge to handle important financial and business affairs, if applicable. One option, if you are concerned about financial management or have significant assets, is to authorize your agent to transfer these assets to a standby trust with a corporate trustee.
Make sure you are thinking objectively when selecting an agent. Many people choose a family member for this role, but a familial bond should not outweigh the importance of an agent who is honest, trustworthy, and competent. Consult with a lawyer, corporate trustee, or another trusted professional before making your final decision.
How can I protect myself against abuse by my agent?
The best protection against abuse by an agent is choosing someone you trust completely. Beyond this, it is possible to add protections for yourself, your family, and your assets.
Include a statement of the agent’s duty in the document, and require the agent to sign this document acknowledging their acceptance of this duty. You can also ask the agent to meet with your lawyer to clarify their role, your expectations, and their responsibilities to you.
What can I do if I believe my agent stole from me?
A Durable Power of Attorney can be amended or revoked at any time by the principal, as long as they are competent to make that decision.
The first step is to consult with a lawyer. Then, immediately revoke or cancel the Durable Power of Attorney so the agent cannot continue to act on your behalf. To do so, you must sign and date a statement indicating your revocation of the document, preferably in the presence of a notary. Mail or deliver copies of the revocation statement to your agent and to all individuals or institutions that have a copy of the Durable Power of Attorney document.
It may be difficult to recover stolen assets unless your agent has the funds to fully repay you. You will have options when it comes to civil actions and a competent attorney can explain these options to you.
If you believe a crime has been committed – for example, theft or abuse or a vulnerable person – you may contact the police and county district attorney. They may decide to take legal action against the offending agent.
Thinking about what happens in case you become incapacitated or disabled is difficult, and Margerie Law is here to help. I can support you in making the important decisions to protect yourself, your family, and your assets. I’m happy to do everything I can to help you and your family feel comfortable and confident about your future. Contact me today.
