Partners David Ball and Michael Barry discuss the firm's Estate Planning practice, including Powers of Attorney.
HEALTH CARE DURABLE POWERS OF ATTORNEY AND DURABLE GENERAL POWERS OF ATTORNEY FOR PROPERTY MANAGEMENT
Estate planning must not only addresses lifetime and after-death issues but gives you the opportunity to address issues that are raised if you become disabled. At some point in your life, you may become physically or mentally unable to give prompt and intelligent consideration to business matters. Electing an agent to legally serve on your behalf for business and legal matter can save your family the time and cost of getting a state court involved and the confusion of interpreting your wishes.
WHAT IS A DURABLE POWER?
A durable power of attorney is a document granting an agent powers which is not affected by the disability of the principal. If a power of attorney is not “durable” it will terminate upon the disability of the principal.
Having a durable power of attorney will remove the need for your spouse or loved ones to have conservators appointed by a court to manage and account for the financial affairs of the disabled person and the need to have guardians appointed by a court (to make decisions regarding medical care of the disabled person). Often, the disabled person has little choice as to who is appointed. Under the “durable” provision, the principal has the opportunity to select in advance who serves as his or her agent after disability.
HEALTH CARE POWER OF ATTORNEY
The point at which a health care power of attorney becomes effective for the agent is determined by the principal. The document can set a specific date or age. Many people will use language in the document where the principal has the power “spring” into existence when disability occurs. The definition of disability can be drafted to fit your particular needs. Many people will use language where disability can be defined as a time when two licensed physicians concur you are no longer capable of responsibly conducting your own business affairs or making your own medical decisions. Others will use a power that becomes effectively immediately without the need determine disability or incapacity.
GENERAL POWER OF ATTORNEY FOR PROPERTY MANAGEMENT (FINANCIAL POWER OF ATTORNEY)
A financial power of attorney is a document in which you name another person to act on your behalf for legal and financial matters. By appointing an agent, you can avoid a court procedure to appoint a conservator in the event you become disabled or unable to make your own decisions. The power of attorney may allow your agent to do all acts or the acts may be limited.
Similar to a Medical Power of Attorney, a financial power can become effective at a time that meets the needs of the principal. For many people, the power will become effective immediately, without the need for disability, if their spouse is the agent. That way one spouse will have authority to act on behalf of the other spouse if one of them is not available (i.e., out of the country on business). Alternatively, a “springing” effective date can also be selected for a financial power of attorney. The springing event could be disability (as you define it), the sale of your business, or any other milestone or trigger you select.