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By: Beth K. Flowers 

Life is full of the unexpected. A power of attorney is an important document that allows an individual to plan for the unexpected.

If an individual suddenly becomes incapacitated and does not have a power of attorney, it may become necessary for a guardian to be appointed to make the individual’s medical decisions and/or to manage the individual’s financial matters. A guardianship is a court-involved proceeding, which can be expensive and time-consuming. In a guardianship, the ultimate decision as to who will act as guardian is made by a judge. The person chosen by the judge may not have been the person the individual would have wanted to be in charge. It is possible to avoid the need for a guardianship if an individual signs a power of attorney.

Under a power of attorney, an individual (called the “Principal”) designates another individual (referred to as the “Agent”) to act on behalf of the Principal. There are two different types of Powers of Attorney: Health Care Powers of Attorney and Property Powers of Attorney (also referred to as Durable Powers of Attorney).  In both cases, the Principal determines who the Agent should be, that is, the Principal decides who will be in charge of important decisions and tasks in the event of the Principal’s incapacity.

Under a health care power of attorney, the Principal identifies an Agent to make the Principal’s medical decisions when the Principal is not capable to making those decisions himself/herself.

A property power of attorney allows the Agent to manage assets titled in the Principal’s name such as checking accounts, investment accounts, retirement accounts, real estate, vehicles, or virtually any other asset which may otherwise be owned or controlled by the Principal. For instance, if the Principal suffers a heart attack and is unable to sign checks, make distribution elections regarding her IRA, or sell an automobile or home, with a property power of attorney the Agent may step in and write those checks, make investment decisions or sell real or personal property on behalf of the Principal.

In our firm, we believe that a power of attorney to deal with pre-death matters in the event of disability or incapacity is an important part of a client’s estate planning and all clients should adopt both a health care power of attorney and a property power of attorney as part of their planning. Deciding who should act as Agent can be a difficult decision but, in the long run, it can become very important for an Agent to have been named.

 

 

Professional Services Disclaimer: Please note that the information presented here is as an educational service, and while it contains information about legal issues, it is not legal advice. No warranty is made regarding the applicability of the information presented to a particular client situation, and the information set forth is not a substitute for original legal research, analysis and drafting for a particular client situation.