If you want to make the most of your comprehensive estate plan, then you need to know how to use the best available tools for any given need. Take incapacity planning, for example. While many people simply neglect this critical area of planning, savvy estate planners understand that they need to guard against unexpected illnesses, injuries, or age-related conditions that could leave them unable to manage their own affairs. The durable power of attorney can be one of the most powerful ways to protect yourself, your family, and your interests when incapacity strikes.
What Is the Durable Power of Attorney?
A durable power of attorney is a specific type of document that empowers someone to make decisions on your behalf. The “durable” aspect of this power of attorney enables it to survive incapacity, unlike other POAs that become defunct on death or incapacity. Because it can survive the incapacity of its maker, the durable power of attorney is usually the first choice for people who want to ensure that they have an attorney-in-fact in place to handle their affairs when illness or injury leave them unable to do so on their own.
The power of attorney empowers that attorney-in-fact to act in your stead when you are rendered incapacitated. When the POA is a financial power of attorney, that agent can perform important tasks like asset management, paying bills, and making decisions about expenditures and investments. You can determine the limits of that power by defining these areas of responsibility in the document when it is created. That means that you can provide expansive authority for your agent, or limit his power to just a few key areas of concern.
Why Do You Need a Durable POA?
The big question here is what happens if you become incapacitated and don’t have a power of attorney or other incapacity plan? The answer is simple: your family will need to seek guardianship so that medical and financial decisions can be made on your behalf. That’s why it’s so important to ensure that you have this type of incapacity protection in place long before your health declines. After all, once a court gets involved in your medical and financial affairs, it can become almost impossible to control the outcome.
In many instances, courts will look to your closest relatives to take on the guardianship role. However, the judge is under no obligation to do so, and may even choose someone from outside the family under certain circumstances. For example, if your family engages in a bitter fight over guardianship – something that happens more frequently than most people might imagine – the court could conclude that an impartial outside party would make a better guardian for your needs. The problem with that is that your affairs would then be at the mercy of a stranger – and one that you had no part in selecting.
There’s also the matter of cost to consider. Guardianship may be governed by the court system, but that doesn’t mean that the state pays for it. If you end up with a court-appointed guardian, it is your estate that will be stuck with the bill for those expenses. That could mean years of legal and court expenses being charged to your estate. There have been plenty of examples of professional guardianships that ended with the guardian giving up control over the ward when his or her estate funds ran out. If you want to better preserve your wealth, guardianship is something that should be avoided whenever possible.
What Protections Can this Document Provide?
In addition to preventing your estate from being consumed by the costs associated with a lengthy period of guardianship, the durable power of attorney can provide other important benefits. It’s important to understand these benefits when you’re making your decision about securing an incapacity plan to protect your interests:
- The POA will enable you to control who oversees your finances, which can ensure that your dependents continue to receive the support they need without court intervention. Your ability to control the amount of authority that your agent has enables you to minimize the potential for abuse of that power.
- Your family can enjoy the peace of mind that comes from knowing that their loved one is not just a ward of the state, subject to the whims of the court system. We’ve all seen stories about families that have endured lengthy court battles over guardianship, so it’s wise to take advantage of your opportunity to avoid that type of conflict.
- The POA gives you the power to ensure that you have someone you trust handling your affairs. That’s important, since the power of attorney privilege can be abused by untrustworthy actors. Moreover, your attorney-in-fact can be removed or replaced at any time prior to incapacity.
- As part of an advance directive, the power of attorney can ensure that your medical decisions are properly delegated as well. This is critically important if you want to prevent your health care concerns from becoming a source of public debate and confusion.
How Can You Get Your Own Power of Attorney?
While there are POA forms out on the internet, many experts recommend that you have yours prepared by a qualified legal professional. The reason for that is simple: with an attorney, you can be assured that your legal documents have been prepared by someone trained in this area of the law. Since you never know who creates those do-it-yourself documents you find online, that option cannot provide the same level of confidence.
When it comes to getting a durable power of attorney that you can trust, there’s only one sure option: rely on an experienced professional to draft your document for you. At the Law Offices of Mary A. Miller, P.C., our estate planning and elder law attorneys can help to ensure that you have the incapacity planning tools that you need to protect your interests at every stage of life. If you’d like to learn more about how a professionally-drafted durable power of attorney can benefit you, contact us online or give us a call at (914) 939-6565 today.
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