A power of attorney, similar to a last will and testament, is a powerful document that must be created before it becomes necessary.
Too often, people put off executing a power of attorney because we are uncomfortable with giving someone else access to our finances while still competent to make decisions for ourselves. Fortunately, a power of attorney can be created to be fully exercisable only when needed.
First, understand a durable general power of attorney is a specific type of power of attorney. The term “power of attorney” is a reference to the document, although it often is used to refer to the actual person named as the agent within the document.
A power of attorney is a document which creates a fiduciary relationship – either for legal and financial purposes or for medical purposes. Sometimes these are for a specific purpose or for a limited time. On the other hand, a durable general power of attorney is created to last until death or revocation and to cover a wide array of needs.
A durable general power of attorney must be executed by someone who is competent to make legal decisions.
Unfortunately, many people realize they need a power of attorney for a loved one when the loved one has reached such significant mental deterioration the individual no longer has the ability to understand what they are signing.
Incompetent individuals cannot sign legal documents. The statutes further seek to protect people from improperly signing by now requiring two witnesses to observe the individual signing.
The law does allow those with limited competency to sign estate planning documents so long as they are in a moment of lucidity at the time of signing. However, this can be extremely tricky and potentially dangerous option that is likely to raise serious legal issues for all involved if later challenged.
If someone has become incompetent and has not executed a valid power of attorney, a loved one will need to request guardianship for the individual.
Guardianship is a court proceeding which requires three professionals to personally assess the respondent, the person who is said to be incompetent. It is a lengthy process which usually takes several months to complete and results in the rights of the respondent being stripped.
A power of attorney, by contrast, can be executed quickly and does not remove any rights.
Perhaps the biggest concern to executing a power of attorney is the agent has control over the individual’s money and property. This is true, but the power of attorney does not have to give immediate power.
For many people, handing over control to accounts is only used as a last resort and only if he or she is mentally incompetent. Of course, waiting until mental incompetency is not a viable option, so we often use a “springing” power of attorney clause. The “springing” term simply means the document, although executed immediately, does not become effective for actual use by the agent until some other condition is met.
Generally, for this condition to be met, a doctor must certify in their professional opinion the individual is unable to manage their own affairs because of incompetency. Having a springing clause gives the individual the protection they need if they become incompetent, but without losing any control during capacity.
A power of attorney is a wide term for documents which grant another person authority to act for you. Although specific or limited powers of attorney may be necessary at times, a durable general power of attorney is an essential lifetime planning document.
By using a document tailored to your needs, you can ensure your agent will have the power they need at the time when you most need them.