By Dan Barney

Estate Planning & the Law

Last week we discussed the fact that a Power of Attorney is a valuable tool that permits some other person to act on your behalf if you are unable to do so for some reason.

Our review included definition of the purpose and intent of a “Durable” power; the duration of a power of attorney and some discussion of the limitations that exist in the use of such an instrument.

This week we will discuss some additional considerations in the use of a power of attorney. These practical considerations are important whenever you are preparing this document and can be evaluated prior to the meeting with your attorney.

1. Naming Multiple Agents. Many people ask if more than one of their children may act for them.

Yes, the duties of the attorney in fact may be held by “Co-agents.” Of course this raises several questions that should be addressed by the terms of the document; such issues include:

A) Can any one agent act on his own or is a majority or unanimous decision required?

B) Is it wise to have and even number of agents, i.e. two or four etc. How do you break a deadlock if the agents are split in their decision as to what to do?

This may sound strange, but many families have two children and want both of them to be named – but children do not always agree, particularly if the issue involves money or the health care of a parent.

As a result it is always a good idea to provide in advance for such conflict and name a neutral party as a tie breaker.

For financial issues this may be a professional whereas for a medical decision many clients have made the doctor treating a person the final decision maker if the health care agents are unable to agree.

Before creating your plan you might think about these issues in advance and discuss them with your spouse or children.

2. Effective Date. A power of attorney may be effective immediately or you may make it effective at a later date that is dependent upon the happening of a certain event.

Such a “Springing” power springs into action when ever you direct. For example you may only want your agent to be able to sign for you or act for you if you are incapacitated for some reason.

Often the written statement of two physicians is used to determine incapacity.

On the other hand you may want a person to be able to immediately start writing checks or preparing taxes for you.

3. Powers That May be Granted. A Durable Power Of Attorney (DPOA) may authorize others to do a variety of functions.

The following are typical examples of powers conveyed to your agent by a power of attorney: To deal with: Personal property (car, finances etc.); real estate (buy or sell home); bank accounts, insurance policies; tax matters; access safe deposit boxes; retirement accounts; receive mail; arrange for health care and treatment; to name a guardian.

These are only a few of the many specific actions that you may transfer to another via a power of attorney. Usually these are all named and listed in the body of the document.

If you have specific actions that must be done for a specific account it is best to name them specifically so that both your agent and the affected institution have no confusion regarding your intent.

The power of attorney can be a valuable tool to insure that your business or personal affairs continue even when you are unable to act.

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