What’s the Distinction Between A Traditional and A Durable Power of Attorney?

A common estate planning term you’ve probably heard of before is power of attorney. Power of attorney is a very valuable document in your estate planning and each different type has its own provisions and rules.

If you’re unsure of which type of power of attorney you need to use, a consultation with a lawyer can help. In general, your power of attorney is a legal document through which you, the creator, name another person who has the authority to make decisions on your behalf and even take actions. This individual is called your attorney-in-fact or your agent.

A durable power of attorney means that this power extends to your agent if you become fully incapacitated and are unable to make decisions of yourself. A durable power of attorney will remain active and in effect until the principle creator revokes the power or passes away.

The only way to revoke a durable power of attorney outside of these situations is if the court revokes the agent’s authority or finds the document invalid or in the case in which the creator of the DPOA gets divorced and the spouse was serving as the agent.

A regular power of attorney, however, ends if the creator becomes incapacitated, which is a primary reason to have a durable power of attorney in place to begin with.

Tips for Choosing Your Healthcare Power of Attorney

Any loved one should have a power of attorney for healthcare set aside. This is the individual who is empowered to make medical decisions on your behalf if you are unable to do so because of your own incapacitation. Depending on where you live, this may go by a number of different terms but the primary basis is the same, to allow someone else to make decisions on your behalf.
Having a healthcare power of attorney is critical in the event of an emergency because it allows healthcare providers to know the life prolonging treatments a person wishes and wants and does not want to have, if you are no longer able to communicate their wishes to medical professionals.
A health care power of attorney can assist with allowing a loved one’s wishes to be enforced. When selecting a health care power of attorney, you should think about who will be likely to uphold your wishes. Parents may be tempted to select their oldest child for a power of attorney for health care and property because they don’t want to offend or insult them but this does not always mean that your oldest child is the most well-suited to this situation.
If siblings do not get along and you appoint different powers of attorney for health care and financial purposes, this could lead to problems down the road.
When you share your choice with your VA Beach estate planning lawyer, you’ll learn more about what’s involved for the person serving in this role.
 

Getting a Durable Power of Attorney to Work in Your Estate Plan

Many people are at least familiar with the potential cost of long-term care. Many individuals in sandwich generation are responsible for taking care of their parents who are aging while also caring for children. This can be an overwhelming experience that prompts people to think about planning for their own future.ThinkstockPhotos-155416217
Although estate planning has traditionally been associated with how you will pass on your assets and putting together basic documents such as a trust or a will, durable powers of attorney can also be extremely crucial for managing things while you’re still alive.
What would happen to you, your assets, or your healthcare decisions if you were suddenly unable to make decisions for yourself? An unexpected consequence from living a longer life is that it is now possible for your body to outlive your mind. Becoming incapacitated could present numerous challenges for you and your family members. Durable powers of attorney can be used as a protection layer if you are unable to make good decisions for yourself or handle your affairs competently.
You can name a principle to handle legal and financial matters on your behalf. This prevents the need for an expensive and lengthy court proceeding to stipulate such a person after an incident has already occurred. You may name a durable power of attorney for asset management or a durable power of attorney for healthcare.
 

High School Graduates Need Estate Planning, Too

In the flurry of preparing for moving off to college and enjoying summer activates like graduation parties, it’s easy to neglect the legal consequences of failing to have documents in place as your child prepares to go off to a higher education in the fall. However, once a child reaches age 18, they are no longer under the responsibility of their parents and this can generate problems if something were to happen to your college aged student’s health once they enter college.ThinkstockPhotos-86528401
It’s time to have a chat with your adult child about whether or not it makes sense to name you as a power of attorney in case something happens. No one wants to think about the potential for a serious accident or medical condition to render your child incapacitated, but having these documents in place will enable you to make decisions quickly and effectively if the time comes.
You should have a medical power of attorney outlined such that parents or another appointed individual is eligible to make decisions on the loved one’s behalf. It’s easy to let things like this go and assume that a child is unlikely to experience health related problems, but an accident can happen at any time and being equipped with the appropriate documentation gives you the most flexibility and opportunity to correct problems as they arise. Do not hesitate to discuss these options with an experienced estate planning lawyer.
 

The Benefits of Having an Evolving Power of Attorney

A power of attorney is a basic instrument that is used to authorize another individual to act on your behalf in a business, legal or medical matter. Typically, a power of attorney only kicks into action when you become incapacitated and are unable to make these decisions by yourself. The powers that are conveyed within a power of attorney are something that you grant to another individual. They are often sweeping and broad, however, they can be tailored to a unique and specific situation. For example, in the event that you become mentally incapacitated you might wish to name another individual to take control of your financial affairs.ThinkstockPhotos-152173297
There are many different kinds of power of attorney documents and this is why it is essential to identify a knowledgeable estate planning attorney to assist you with this process. Your power of attorney may need to evolve over the course of time as your individual needs change.
In addition, the person that you have chosen to serve as your power of attorney agent may not able or willing to do so over the long run. For example, imagine that you have named your current spouse as your power of attorney agent to make legal, financial and medical decisions on your behalf. If you get divorced, however, it becomes all the more important to update your power of attorney document.
You may wish to flex things over time to provide greater or fewer powers to a power of attorney agent. This is why it is important to have an established relationship with an experienced estate planning attorney who can help you determine the power of attorney documents you need now and help you amend or create new ones in the future as your individual needs change.
 

How to Make Sure Your Power of Attorney Actually Works

Estate planning
A durable power of attorney is an important document for protecting yourself. However, from an institution’s point of view it is important to consider what they would look at in determining whether or not a durable power of attorney is actually valid. A power of attorney could be a rescinded one as a result of a falling out or it could even be forged.
Financial institutions will typically take several steps to determine whether or not a power of attorney is valid in order to protect themselves from liabilities associated with a lawsuit. If you are going to put together your own durable power of attorney, there are several steps you can take to increase your chances of this being viewed as a valid document.
First of all, verify whether your institution has a form of their own that they would prefer you use. Filling this out gives them much more comfort in obeying an agent’s orders. Secondly, introduce the agent in your durable power of attorney to your local financial institution so that they know one another already. If an agent is unable to get approval on a power of attorney, request more information to learn why. This could be an ideal opportunity to change the wording on your document.
After you’ve hired a Virginia estate planning  or elder law attorney, it might also make sense to have them talk to your institution’s legal department. Sometimes, staff may be misinterpreting what the firm’s requirements actually are. In order to have a durable power of attorney honored that is currently being questioned as invalid, a lawsuit may be necessary. Guardianship may also be a last resort in these situations. Thankfully, consulting with an experienced estate planning attorney can help you avoid this problem altogether.

What You Should Know About Powers of Attorney

Power of Attorney
When most people consider estate planning, they are thinking about wills and trusts. However, it’s important to realize that these are not the only components of a successful estate plan. An estate plan should also have powers of attorney. More than one may be appropriate based on your situation, and the right Virginia estate planning lawyer can help you figure out what’s right for you.
A power of attorney enables one person to grant another individual the ability to perform acts on the first person’s behalf. This can be done based on circumstances outlined by the first person. The good news is that you have some flexibility and control over how the powers within your power of attorney can become active. A discussion with your lawyer is well worth it when it comes to this.
The two most common types of documents are known as the power of attorney for healthcare and the durable power of attorney. If you choose a power of attorney that is only triggered after a particular type of event, for example, then a doctor might have to certify that you as the principal meet the qualifications to allow the other person to make decisions on your behalf.
As you can see, whether it’s a medical power of attorney or a financial one, choosing the right person to serve in this role is really important. It’s not a decision that should be taken lightly. You should always discuss your options after consulting with an experienced estate planning attorney

For Caregivers, Ensuring Legal Matters Essential

Doctor laying hand on senior man's shoulder

Doctor laying hand on senior man’s shoulder

Caregivers of people with serious illnesses, particularly cognitive issues of the elderly, have a lot on their plate, but they also have an obligation to make future legal preparations for their loved ones.
“As a caregiver, you should begin making legal preparations soon after your loved one has been diagnosed with a serious illness,” states an article on the webmd website. “People with Alzheimer’s disease and other long-term illnesses may have the capacity to manage their own legal and financial affairs right now. But as these diseases advance, they will need to rely on others to act in their best interests. This transition is never easy. However, advance planning allows people with a long-term disease and their families to make decisions together for what may come.
“Clearly written legal documents that outline your loved one’s wishes and decisions are essential for caregivers. These documents can authorize another person to make healthcare and financial decisions, including plans for long-term care. If the person being cared for has the legal capacity, the level of mental functioning necessary to sign official documents, he or she should actively participate in legal planning. To give your loved one the best care possible, obtain legal advice and services from an attorney experienced with these issues. If the person you’re caring for is age 65 or older, consider hiring an attorney who practices elder law, a specialized area of law focusing on issues that typically affect the elderly.”
Webmd.com advises caregivers to be certain that important documents are in place, including:

  • Power of attorney
  • Durable power of attorney for health care, also known as health care proxy
  • Living will
  • Living trust
  • Will

 

Power Of Attorney Valuable, But Subject To Abuse

Most people turn to family, friends or even neighbors when they feel a need to grant powers of attorney to someone to act on their behalf.

That can, sadly, be a serious mistake, accord to a report on the website marketwatch.com.
“Statistics on power of attorney abuse are hard to come by, but experts recognize it as a prevalent problem,” according to the article
“Some kinds of power of attorney grant their holders far-reaching authority over the affairs of people who are physically or mentally unable to conduct their own business.”
The article cites a November 2013 report on elder financial exploitation from the Government Accountability Office that “listed power of attorney agents as one category of potential abuser whose actions can be particularly challenging to prevent.”
“Indeed, family members, friends and neighbors are the culprits in 34 percent of elder financial abuse cases, according to a study by MetLife,” the report continues. “Yet much of the education on senior financial exploitation centers on scams perpetrated by strangers.”
“We’ve got them so scared of answering the phone or going online, when the majority of the assets are going out the back door by a trusted niece,” the report quotes Randy Thomas, a former police officer in Columbia, S.C.
The vehicle that often enables this, the retired cop told marketwatch.com, is power of attorney.
“Here’s what that can look like: A friendly neighbor offers to go pick up an elderly couple’s license plates. He has them sign a specific power of attorney for that sole purpose, printed from an automobile-club website. He takes that to the bank and uses it to withdraw money from the couple’s account. That’s an actual scenario that came before Thomas A. Swift, probate judge in Trumbull County, Ohio; the bank returned the money, because the teller should have but failed to notice the limited nature of the power of attorney.)
“Pamela Glasner, a filmmaker who lives in central Connecticut, experienced a more devastating scenario when a man from her parents’ Florida synagogue gained the couple’s confidence a few years ago. Glasner’s father, who had Alzheimer’s disease, had moved into a nursing home, and her mother lived alone and visited him daily. The man, who represented himself to nursing-home staff as the couple’s son, had Glasner’s father sign a power of attorney form that he then used to access their money and transfer their house into his name. The fraudster also had Glasner’s mother rewrite her will, naming him a beneficiary.”
“By the time we found out about it,” Glasner was quoted as saying, “all of our accounts were zeroed out.”
“When used properly, the power of attorney can assure that a trusted person is handling your financial affairs, or making health-care decisions for you, when you’re not mentally or physically capable of doing this yourself. Many lawyers include powers of attorney as part of a standard estate plan. Some recommend separate documents for financial affairs and health-care, while others create one document to address both.”
 

End Of Life Control Possible With Some Advance Preparation

No one wants to contemplate his or her incapacity or even death, but everyone should.

“Who speaks for you if you are not able to speak for yourself?” begins a recent article on PBS “News Hour” story . “Who determines what kind of care you want at the end of life, how your finances are handled, how your estate will be distributed? You do, but only if you’ve prepared ahead of time. “
The documents are fairly straightforward, yet many people postpone taking action to complete them. It isn’t easy to think about your own incapacity or death. But these important legal and health care decisions not only protect your own interests, they protect your family and loved ones by clarifying the kinds of care you would like to receive if you are seriously ill.”
Among the documents cited in the story is an Advanced Health Care Directive. Also called Living Will, Durable Power of Attorney for Health Care or Health Care Proxy, the directive “saves your family from having to make very difficult decisions about your care in times of grief or crisis,” the story points out.
“Often used to decide about the use of feeding tubes, ventilators, pain management, organ donation and other issues when someone is unconscious or at the end of life. Each state has slightly different versions of the form, but a form from one state will be honored in another state.
“Hospitals and most doctors’ offices will provide you with the form upon request.”
Also mentioned are, naturally, a last will and testament as well as possible living trusts.
Having compiled these important papers, a person has one other important thing to do, the PBS piece states: let others know where they are.
“Have a central place for wills, trusts, powers of attorney, etc., or a document describing where they are so family members will know where to find these items. Include information about your Social Security number, safe deposit box, birth certificate, life insurance, contact information for attorney, and other important details.”