Having power of attorney just 'might be beneficial'
People frequently ask, "Do I need a power of attorney?"
The answer is almost always "yes."
A power of attorney is a legal document, actually a contract, wherein one person, the principal, gives certain powers to another, known as the agent or attorney-in-fact.
This attorney-in-fact is authorized to act in place of the principal and to do almost anything that the principal could do.
A power of attorney creates an "agent-principal" relationship wherein the agent derives his power from the principal. The attorney-in-fact must only act in the best interests of the principal.
Anything that violates this principle can be undone or corrected through the courts.
There are dozens of circumstances in which a power of attorney might be beneficial or worthwhile: if the principal suddenly becomes ill, is injured in an accident, is away on vacation or, for any other reason, needs to act but is not available.
The attorney-in-fact can sign checks, move funds, transact business or do any of the other activities authorized by a power of attorney.
A power of attorney specifies exactly what powers you give to your attorney-in-fact.
You can limit the powers you give to your attorney-in-fact. Often, people create limited powers of attorney to allow another to sign deeds or contracts for transactions that are being consummated in their absence.
However, most "general durable powers of attorney" give the attorney-in-fact the power to do almost anything the principal could do.
Banks and brokerage companies often set their own rules in so far as accepting powers of attorney. Many banks will not accept a power of attorney that is more than two years old; brokerage firms may set their limits at only six months.
The two most popular powers of attorney are the "General Durable" and "Springing" powers of attorney.
The "general durable" power of attorney is one that becomes effective immediately upon the principal signing it.
A durable power of attorney remains effective even if the principal becomes legally incompetent or incapable.
To be "durable" it must contain language stating that it "will survive the incompetence or incapability of the principal." If the power of attorney is durable, it remains in effect until it is revoked or until the death of the principal.
Clients are told the power of attorney expires when you expire. Revocation can be done at any time.
The statute provides a form that can be used to revoke a power of attorney. A simple letter by the principal to anyone or any institution that has accepted and acted upon the power of attorney is usually sufficient for revocation.
"Springing Powers of Attorney" require the occurrence of a certain specified event before they become effective.
For instance, the language might state the power is not effective so long as the principal remains fully competent. It may further specify how the incompetence of the principal must be determined. Often, an affidavit from the principal's physician attesting to the incompetence of the principal is required.
As with any documents you might sign authorizing someone else to act in your stead, choosing your attorney-in-fact is very important. Choose only someone you implicitly trust.
If you would not allow that person unfettered access to your home then do not designate him or her as your attorney-in-fact.
While the power of attorney may be labeled as "durable," it may not be accepted, especially as the time between it execution and its presentation grows longer.
It would be wise and prudent to review at least every five years your planning documents such as your Last Will and Testament, Living Will and Power of Attorney.
In fact, execution of a new power of attorney every three years would not be a bad idea.
Rudy Kuss is an elder law attorney in New Milford.