Individuals try to prepare for any situation that may happen to them, and they do their best to look after their loved ones. However, unexpected events, such as an illness or a car accident, can sometimes prevent them from managing their affairs. A power of attorney drawn up by an estate planning attorney at Weiner Law in San Diego CA can help them manage these situations.
What Is Power Of Attorney
A POA is a legal paper allowing another person to make decisions on your behalf if you cannot do so yourself. It can ensure that important decisions, such as healthcare and financial matters, are handled properly and according to your wishes, if you are incapacitated or not available. Understanding the various types of POAs will help you choose the one that’s right for you.
Durable Power Of Attorney
Most times, a durable power of attorney is an umbrella term that refers to documents that allow an agent to continue working on your behalf even if you become incapacitated. You can use it when you are worried you might become incapacitated because of various reasons, such as illness and accident.
In most states, you don’t need to tell your agent that you have a durable power of attorney. It means they’re not obligated to serve on your behalf even if you become incapacitated. However, they still have legal access to your finances once the POA takes effect. You can also revoke their power at any time.
Your agent must act in your best interest, not theirs. If a bank suspects they are abusing their power, it can ask them to leave the account. You could do this if you kept the durable power of attorney the same in the last few years.
If you think your POA agent is misusing your funds, you can take them to a court or contact the state’s adult protective services. A court can order the agent to return the money or other assets they have misappropriated. Depending on the nature of the abuse, the agent may face criminal charges.
Non-Durable Power Of Attorney
A non-durable power of attorney is not a permanent document and is not intended for situations involving incapacitation. You can’t use it if you’re legally incompetent. Instead, a non-durable POA can be used to make an agent act on your behalf when you can’t be present. For instance, if you’re moving to a new city and need someone to help you get an apartment, a non-durable POA can be used.
The non-durable power of attorney (POA) takes effect once all documents are signed. It can end when either the transaction you outlined is complete or the date you created the document passes. Non-durable POAs end if you become incapacitated. This document means you want to accomplish a specific objective, such as signing a legal agreement.
For instance, non-durable power of attorney is a good idea if you plan to sell your business or buy real estate. This POA is similar to a business transaction. But if something should happen to you, you might not want them to continue the deal.
Likewise, with the non-durable POA, the authority you give your agent becomes invalid when you are incapacitated. The security feature of a non-durable POA is that you can’t alter it once you become incapacitated. It means someone authorized to do something on your behalf would be unable to access your account.
Immediate Power Of Attorney
An immediate power of attorney is a legal document that allows you, the principal, to appoint an agent to act on your behalf in matters pertaining to your financial and personal affairs. In most states, an agent may not need to sign it. You can also renew it once a year according to your state’s guidelines.
A person named under a POA should not use it until the principal is immobilized. It means that if you give an agent an immediate POA, they are not supposed to start working on it until the principal is incapacitated. Aside from being able to act in your best interests, an agent also has to make sure that you are receiving the best possible service.
Springing Power Of Attorney
A traditional POA can be very beneficial if you use it for financial or business purposes. It allows your agent to take over whenever you need them immediately. For instance, if you’re moving overseas and need to keep your business running while you’re away, you can appoint an agent to handle it.
A springing POA gives your agent the power to act on your behalf when a specific condition happens. This type of agreement is commonly used for estate planning, as the client would become incapacitated and unable to do so for themselves after the condition arose, and your agent’s power “springs” into effect.
Although a springing POA can prevent your agent from using your powers unless incapacitated, most attorneys do not recommend using it for estate planning. It is because it takes a long time to determine if you’re genuinely incapacitated.
If you develop dementia, it could be very challenging for you and your agent to manage your affairs. Your doctors, friends, and agents may have different definitions of what it means to be incapacitated. It could cause delays in providing the necessary support and financial help. In addition, it could prevent your family from receiving the financial support you need.
A non-springing POA can be very beneficial, as it allows you to let your agent use their powers only if they believe that you are incapacitated.
General & Limited Power Of Attorney
You can write a power of attorney in two forms: general or limited. General powers allow an agent to make various decisions regarding your financial and personal care. This type of power is ideal if you want to give someone the freedom to manage your assets. On the other hand, a limited power of attorney can restrict the agent’s ability to access certain assets.
This document is very technical and can be very challenging to understand. It will help if you consider working with an estate planning attorney skilled in elder care law or living wills. There are various ways to do this, but the best bet is to find someone competent in this field.
Choosing An Agent To Act On Your Behalf
You can name a family member as your agent. Usually, people name their spouses or children as the individuals who will act on their behalf. Be aware that the other agents may only be available to act sometimes. The co-agent designation should indicate whether or not you want the majority to act if there is a disagreement.
Regardless of whether or not you have a co-agent, it’s essential to name one or more successors whenever possible. It ensures that the person you name may be available when needed.
Individuals can act as an attorney-in-fact without special qualifications except that they must not be incapacitated or minor. The best choice would be someone you can trust. A potential agent should have integrity and ethics, not financial acumen.
Granting Specific Powers To An Agent
Aside from managing your financial affairs, an attorney-in-fact can also help you implement your estate plan. Although an agent cannot legally change your will, some jurisdictions allow them to create or amend trusts for you.
Even if you do not create trusts or amend your will, an agent can still significantly impact how it distributes your assets. You must clearly state your wishes regarding the powers of attorney.
In addition to managing your financial affairs, an attorney-in-fact can help you implement your estate plan. If you clearly state your wishes regarding the powers of attorney, you can make gifts on your behalf. For instance, you can allow your attorney-in-fact to make annual exclusion gifts to your children and grandchildren.
The lawyer preparing your power of attorney should ensure that they draft your document in a way that does not expose them to estate tax consequences. In some states, attorneys-in-fact can make gifts as long as they have authorization.
Reviewing & Updating Old Documents
You should also review your old documents to ensure they comply with the current law. Since the estate tax exemption has increased, many people no longer want to provide agents the capacity to make estate gifts. However, some want to empower agents to minimize their estate tax liability.
There are also reasons why an attorney-in-fact may not limit the gifts they can give to your children and grandchildren. For instance, they can make annual exclusion gifts to help facilitate Medicaid planning or minimize estate tax liability.
Weiner Law in San Diego, California, has competent attorneys with the skills necessary to handle various cases in executing a power of attorney. You can communicate with one of them to ensure that your POA follows the requirement provided by law.