A Durable Power of Attorney is a document in which you appoint an “Attorney-in-Fact also sometimes called an agent” to do anything on your behalf that you, the “principal” could do for yourself. The Attorney-in-Fact, in effect, stands in your shoes and acts for you on financial, business and other matters.
We cannot predict the future, we do not know what crisis might come our way that might cause us to be temporarily incapacitated. By having a properly executed Durable Power of Attorney in your well-thought-out estate plan, your Attorney-in-Fact can step in handle your matters on your behalf so there is little interruption and/or impact on your financial and business matters during this period.
You control who steps in to make the decisions on your behalf during your period of incapacity instead of a court. Your Attorney-in-Fact can be any competent adult that you trust. If you do not have a properly executed Durable Power of Attorney, your family will need to go to the local Probate Court and ask the Court to appointed whomever the Court thinks is appropriate to “step into” your shoes. The Court’s choice may not be your choice.
Conversations about one’s death are hard to have with loved ones. It is important that you have an open and honest conversation with your loved ones so that they are clear on what your wishes and desires are in general. If you do not have this conversation with them, they cannot do their best by you as they will be guessing.
Sit with your Attorney-in-Fact and explain what the document does and why you think they are the best person for this role. A Power of Attorney normally, takes effect as soon as the principal signs it. Most people do not intend that their Durable Power of Attorney be used until they are incapacitated. The principal should discuss this with their Attorney-in-Fact so that both parties are clear on what the principal’s wishes are so that they can be carried out without delay or question.
Just because you appoint someone as your Attorney-in-Fact, does not give them the authority to do whatever they want with your affairs. Giving someone a Power of Attorney does not limit your rights in any way. It simply gives the other person the Power to act when you cannot.
Your Attorney-in-Fact would be your fiduciary. A fiduciary is a person who is held to a high standard of good faith, fair dealing and undivided loyalty to the principal. The Attorney-in-Fact must always act in the principal’s best interest. The Attorney-in-Fact should keep complete records of what they do in case there are any questions of impropriety or bad faith dealing.
A principal may revoke a Power of Attorney at any time. All the principal needs to do is send a letter to his or her Attorney-in-Fact telling the Attorney-in-Fact that their appointment has been revoked. From the moment the Attorney-in-Fact receives the letter, they can no longer act under the Power of Attorney. If want to have proof that this letter was in Fact received by the Attorney-in-Fact, send the letter certified signature required.
Mostly importantly, you are providing yourself and your family members with peace of mind. If you become incapacitated, there is a plan already in place. Your family does not need to rush to court to get authority to perform basic tasks, like paying the mortgage. Knowing this has been taken care of in advance is of great comfort to families.
Have questions or concerns about your estate planning? Contact us to discuss further:
E.M. Curran & Associates LLC