As adults, we don’t like to think about ever being in a position where we cannot make decisions or speak for ourselves. Unfortunately, sometimes situations arise where we need to rely on others to look out for our best interests. One such situation is when a person becomes incapacitated due to illness, trauma, or a disease such as dementia or Alzheimer’s. Because there is no way to predict if any of these circumstances will arise, either very suddenly or over time, it is important to have a legal document in place that names a specific individual to make decisions for us if we cannot do so ourselves.
This can be accomplished through the creation of a Durable General Power of Attorney (referred to as a DGPOA) whereby a person (the “principal”) appoints a competent adult (an “agent”) to act on behalf of the principal. Essentially, in this written, legally binding document, the principal gives authority to the agent to step into the shoes of - and make decisions for - the principal.
Though powers of attorney may be limited to a very specific task (such as selling the principal’s home), they are most useful as estate planning tools when they permit the agent to act in a broad variety of circumstances (such as handling all of the principal’s legal and financial matters). As with most legal documents, the devil is in the details and it is very important to work with a reputable estate planning attorney. Accidents and certain illnesses occur unexpectedly, so waiting until they happen may be too late. Legal documents can only be validly executed while the principal is alert and competent.
As the name suggests, the DGPOA is in fact “durable,” meaning it remains in full force and effect during the lifetime of the principal, and is durable through incapacity. The principal can revoke it at any time he or she is competent, and it is no longer effective after the principal’s death.
So, Why do I Need a Power of Attorney?
Many people assume that in the event of catastrophic injury or illness, a spouse or adult child can automatically act on their behalf. This is not the case. If you become incapacitated, a valid DGPOA is needed to grant legal authority to your chosen agent pay bills and taxes, apply for benefits on your behalf, make transfers of assets for the purpose of Medicaid or estate tax planning, and generally handle your finances and assets.
Another misconception is that parents can act on behalf of their children who have reached age 18. That is also not the case. Once a child turns 18, the parents’ legal authority to make decisions for a son or daughter no longer exists. A DGPOA is needed to give this authority to the parents.
When there is no DGPOA in effect, a legal proceeding is required in probate court to appoint a Guardian or Conservator. The Court requires a showing of proof of both the ward’s incapacity and of the proposed Guardian’s fitness to serve. This process involves court fees, attorneys’ fees, ongoing court supervision and the annual filing of reports.
Advance preparation of a properly drawn up Durable General Power of Attorney can prevent the expense, inconvenience and humiliation of the guardianship process. Contact Loftus Law Offices, PLLC today to discuss the options you have. We can be reached at 603-465-7178 and at This email address is being protected from spambots. You need JavaScript enabled to view it..
