Do you have the Right Durable Power of Attorney?

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Do You Have the Right Durable Power of Attorney?

What is a Power of Attorney? Sometimes it’s called a Financial Power of Attorney. It’s a document that gives authority to your named Agent to act for you in various situations.  That may be paying your bills, accessing your bank accounts, closing your accounts, or even selling your residence. Well planned power of attorney documents give considerable authority to your appointed Agent, so you need to make sure that you have named a trusted person to act as your Agent.

Have you named a successor Agent? Maybe you have named your spouse or your oldest child as your Agent, but what if that person can’t act for you. Have you named an alternate person? Is your power of attorney a “durable” power of attorney? If it is durable, this means that your Agent can act for you even if you are incapacitated. Generally, you want the document to be durable, and you want to appoint an alternate Agent so that you are better protected.

Is your power of attorney “springing,” “conditional,” or “immediate”? Both springing and conditional powers of attorney have been outlawed in some states due to the problems that they can create, but I often see them being used by attorneys who are not familiar with those issues. If a person is being scammed or making bad decisions, and they have a springing power of attorney that requires one or two doctors to state that the person cannot handle their own affairs, the big question is whether doctors will be willing to sign such statements, or whether the person can avoid going to the doctor so that there is no diagnosis of dementia, or whether the person can fool the doctor during a five minute visit so that the doctor thinks the person is still okay to handle their own affairs.

Is your power of attorney elder law friendly? An example of the importance of this is whether your Agent can get you onto government benefits such as Medi-Cal if you need assistance at home or you want Medi-Cal to pay for your nursing home costs. It’s not just a matter of the application for the benefit, but the power of attorney must also allowing transfers and reclassification of assets for eligibility for those benefits and for protection against the state placing a lien on those assets. These are critical issues for many elders, and the lack of a power of attorney, or having the wrong power of attorney, can prohibit your family from taking the necessary actions to protect you and your loved ones.

I have seen many individuals and families face financial hardship because a proper power of attorney was not in place. Getting a good power of attorney is not difficult. Not having the right one in place when you need it can be devastating.

Every adult should have the right kind of power of attorney in place and have the best Agent and successor Agent available to take action to help them. It’s one of the most important documents that a person can have. If you don’t have a durable power of attorney in place, get one. If you have one, make sure that it is detailed enough to allow your Agent to take the necessary actions that may be needed to protect you, to care for you, and to protect your assets.



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