A durable power of attorney is a document, authorized by state law, which allows a person to designate another party to handle his or her affairs. What makes these powers of attorney “durable” is that they continue to be in force even after a person loses the mental capacity required to create such an arrangement. For this reason, they are often used in situations in which a person is aware of the fact that he or she may lose mental capacity in the future and wants to ensure that his or her affairs are handled by a trusted friend or family member.
Who are the Parties to a Durable Power of Attorney?
The person who creates the power of attorney is referred to as the “principal,” and the person who is authorized to act on the principal’s behalf is referred to as the “agent” or “attorney-in-fact.”
What Decisions can an Agent Make on a Principal’s Behalf?
A durable power of attorney is a very flexible document that can be specifically tailored to meet the needs and specific interests of the parties involved. For example, many people choose to execute a “general” power of attorney that allows another person to make financial decisions on his or her behalf, such as buying or selling real estate, managing a business, creating a trust, paying debts, or pursuing litigation. In some cases, people may include healthcare decisions in a general power of attorney document, but many people choose to make a separate durable power of attorney that is specific to decisions regarding healthcare.
Do I need an Attorney to Create a Durable Power of Attorney?
There is no rule that requires an attorney to be involved in the creation of a durable power of attorney, and there is no shortage of “do-it-yourself” forms available online. It is highly advisable to consult with an attorney, however, in order to ensure that the document into which you enter accurately represents your wishes and that all potential issues are adequately addressed.
Contact a New Jersey Estate Planning Attorney Today to Discuss Your Situation
If you are considering creating a durable power of attorney for yourself or your loved one you should speak with an attorney as soon as possible. The assistance of an attorney can help ensure that the durable power of attorney you establish fits your needs and accurately reflects the wishes of both the principal and the agent. To discuss your circumstances with a New Jersey estate planning lawyer, call John L. Schettino today at 201-498-9768 or send us an email through our online contact form.
None of us like to think about the many uncomfortable topics surrounding death and dying, but there’s one conversation about end-of-life care that you can’t afford not having with your loved ones. When appointing an individual with the power of attorney in your will, you want to make sure that you know fully what that responsibility entails. It’s vital to choose a good person for this position, as they will have an immense amount of power regarding your financial life. Additionally, if you choose no one, the courts may appoint a guardian instead. Here’s what you need to know.
What They Can Do: There are a number of roles that come with holding the power of attorney, chief among them the ability and responsibility to manage your financial affairs. This person can sign your name, and is held liable to acting in your best financial interests, and following your express wishes when doing so. There are two main types of powers of attorney when it comes to estate planning
- Springing Power of Attorney. This will only be implemented in specific circumstances, usually when you are unable to make sound decisions for yourself. The person you select to act as you agent cannot do so unless there are clear letters from doctors or a court of law that you cannot make solid decisions.
- Durable Power of Attorney: This goes into play immediately, and without any need to prove your incapacity. If you feel comfortable doing so, this is often a simpler answer to having another individual act in your name for financial matters.
Choosing Your Agent: The person you select to act as your agent should be someone who is trustworthy and competent and financially secure enough to handle the responsibility of managing your affairs. Besides a relative, you can also select for a bank or lawyer to act as your agent. Working with an attorney can help you to make this choice. If you do not specify an agent to act for you in your will, the court system will choose a guardian—a process that will cost a substantial amount of money.
Rendering Documents Ineffective: Your will and associated health care documents are ordinarily permanent until you revoke or change them, which you can do at any time. However, there are a few circumstances when this may happen otherwise. Courts can invalidate your document, or revoke the authority of your agent, though this does not regularly happen as they tend to respect your authority in personal health matters. One of the most common additional ways that your documents can change is in the event of a divorce, when your former partner had been named the agent. In several states, they will automatically be removed following a permanent separation.
Wills and end of life care are vital issues to consider, and you need an experienced and compassionate attorney to help you make the best choices for you and your family. Contact me, John Schettino, for a free phone consultation at (201) 498-9768 to get started.