When you feel perfectly capable of handling your own affairs it can be hard to wrap your head around the notion that you may become unable to make your own decisions at some point in time. However, incapacity is quite common among our nation’s elders. One way to address this possibility would be through the creation of a durable power of attorney.
Empowering an Agent
When you create a power of attorney you are empowering an agent to act on your behalf. In the legal field, powers of attorney are used for various different reasons. They are not exclusively used by estate planning attorneys to help clients prepare for possible incapacity late in their lives.
However, in the estate planning realm durable powers of attorney are used. A standard power of attorney that is not durable would not remain in effect if the grantor (the person creating the power of attorney) was to become incapacitated.
A durable power of attorney does remain in effect upon the incapacitation of the grantor.
If you have a durable power of attorney in place, your hand-picked agent would be empowered to make decisions on your behalf in the event of your incapacity.
You may want to prepare for the possibility of incapacity without empowering an agent to be able to act on your behalf while you are still perfectly capable of handling your own affairs. In some jurisdictions this can be accomplished through the execution of a springing durable power of attorney.
This type of power of attorney springs into effect only if you were to become incapacitated. The attorney-in-fact that you selected would not be able to act as your representative until and unless it was proven that you were in fact incapable of handling your own affairs.
Guardian or Hand-Picked Agent?
What would happen if you became incapacitated without preparing in advance for this contingency? The answer is that the state could be petitioned to appoint a guardian to act on your behalf.
This is not the desired outcome for most individuals. For one thing, the court appointed guardian may be someone that you never would have chosen yourself.
In addition to this, family members may not agree with regard to the optimal course of action. More than one person may want to serve as guardian. There could be accusations and finger-pointing.
A guardianship proceeding could take time. Meanwhile, circumstances could exist that necessitate immediate action. A drawn out guardianship proceeding could result in important business being left unattended.
If you take the time to execute a durable power of attorney you can prevent a potential future guardianship proceeding. You can rest assured that a decision-maker of your own choosing is ready to spring into action if you do in fact become incapacitated at some point in time.
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