Durable Power of Attorney

For most of us, we are far more likely to become incapacitated than we are to die.  Incapacitation can be temporary, such as unconsciousness from an accident, or can be long-term (even permanent).  What most people fail to realize is that when you’re unable to review and sign documents yourself, it’s too late to find someone else to do it for you.  The legal phrase here is “capacity”.  Once a person loses capacity due to injury or illness, the law does not allow that person to sign a power of attorney (or any other document).  Family or friends of an incapacitated person usually have only one option: go to court and seek a very expensive and time consuming conservatorship.  This is a public proceeding open for the world to see.

The solution is to execute, today (while we still have capacity) a durable power of attorney.  This is also referred to as a “springing” power of attorney, because it “springs” to life upon a certain event.  In most cases, it is the signed declaration, under penalty of perjury, of two medical doctors that the person in question does not have capacity to understand the nature or consequences of his or her actions.  The causes can range from accidents to illnesses to old age, but the doctors can revoke their declarations at any time.  Upon the signing of these declarations, the person named as the originator’s attorney‑in‑fact then becomes able to operate the incapacitated person’s finances and to execute all necessary documents to achieve that purpose.

Naturally, you will want to make the choice of your attorney-in-fact carefully.  It will usually be your spouse, but may be a sibling, child, or close friend whom you trust to make wise financial decisions.  Absent having a power of attorney, the court will choose a conservator for you, and this may not be the person you would have selected.

A power of attorney is only one part of a comprehensive estate plan.  Our firm may not be able to prevent incapacity, but we can provide piece of mind knowing that you have the required documents in place.  All estate plans done by our firm are personally drafted by an attorney, not by paralegals or legal secretaries as is the case with many larger firms.

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