Estate planning attorneys in our Overland Park office provide assistance to those wanting to create a power of attorney. A power of attorney is a powerful part of your estate plan. It allows you to control and choose who will manage your assets and make your decisions for you if you are not able to act on your own because you have become incapacitated. However, creating a power of attorney is not as simple as just delegating authority to an agent of your choosing. You need to make some important decisions about how you want your power of attorney to be structured so you can control when you give someone power to act for you.
The law firm of Parman & Easterday will explain how a power of attorney works, when you should create one, and what your options are for giving a trusted person the authority to act on your behalf. If you reside in Overland Park, or anywhere in Johnson County or nearby counties, you should give us a call. Speaking with one of the estate planning attorneys located in our Overland Park office will help you find out more about how to protect yourself in case you become incapacitated.
What Is A Springing Power Of Attorney?
When you create a power of attorney, you name an agent, sometimes called an attorney in fact. You could give that agent unlimited authority to act for you — within the bounds of the law — by creating a general power of attorney. You could also make a limited power of attorney and give someone authority to act on your behalf but only in a specific set of circumstances. For example, to help sell your home. When you are creating a power of attorney for purposes of incapacity planning, a general power of attorney is the best approach. The person you select as your agent has a fiduciary duty to properly act on your behalf in any situation when you make a power of attorney. That is the highest legal obligation to another person under the law.
If you are creating your power of attorney for purposes of naming someone to act on your behalf in case of incapacity, you will want to ensure that your power of attorney is what is referred to as a “durable power of attorney”. When your power of attorney is durable, it remains in effect even AFTER your become incapacitated. If your power of attorney does not contain the specifically required language, the grant of authority would terminate when you become incapacitated, just at the point when you need the most help. You do not want this to happen if you have named an agent to act for you if you get sick or hurt.
The next question is, when do you want the agent of your power of attorney to be able to act on your behalf? A durable power of attorney can be created so that it goes into effect the minute you sign it. With that arrangement, your agent can act on your behalf from that point forward. It is referred to as an immediate durable power of attorney.
By contrast to an immediate durable power of attorney, you may want a durable power of attorney to be executed and valid, but want it structured so your agent can act on your behalf as your attorney in fact only AFTER you have become incapacitated. As long as you are healthy, your chosen agent has no immediate authority to act on your behalf as your attorney in fact. This is referred to as a springing durable power of attorney.
A springing power of attorney goes into effect only upon the occurrence of a specific future condition. Most commonly, you can make your springing durable power of attorney go into effect only if you become incapacitated. This would mean that your grant of authority to your chosen agent becomes valid only if you are incapacitated and unable to act on your own. This gives you the ultimate protection because you can maintain complete control over your assets until such time as you become incapacitated at which point your trusted agent takes over on your behalf. However, the downside is that it may not always be immediately clear when you have become incapacitated enough for your agent’s authority to take effect, which can potentially lead to delays in your agent’s ability to act for you and manage your affairs.
How Can Our Overland Park Estate Planning Attorneys Help You?
Our Overland Park estate planning attorneys at Parman & Easterday can help you to determine if you should create an immediate durable power of attorney or a springing durable power of attorney. We can explain your different options for giving an agent authority to act for you and we will help you throughout the process of making a legally valid power of attorney that provides the protection you expect in case of incapacity.
To find out more about how our firm can help you, give us a call today at (913) 385-9400, (405) 853-6100 or contact us online. You may also join us for a free seminar to get general information on making an incapacity plan, an estate plan, and more. Reach out to our compassionate and knowledgeable legal team today to get your plans underway so you can be prepared for any potential future.