submitted by E. Garrett Gummer, III, Esquire, and Maureen L. Anderson, Esquire, www.GummerElderLaw.com
A durable power of attorney is an extremely important estate planning tool, often more important than a will.
If you become incapacitated due to dementia or some other reason, this crucial document allows a person you appoint (your “attorney-in-fact” or “agent”) to act in place of you (the “principal” ) for financial purposes. The agent under the power of attorney can quickly step in and take care of your affairs.
But in order to execute a power of attorney and name an agent to stand in your shoes, you need to have capacity. Regrettably, many people delay completing this vital estate planning step until it’s too late and they no longer are legally capable of doing it.
What happens then?
Without a durable power of attorney, no one can represent you unless a court appoints a guardian. That court process takes time and costs money, and the judge may not choose the person you would prefer.
In addition, under a guardianship the guardian may have to seek court permission to take planning steps that he or she could have implemented immediately under a simple durable power of attorney.
It is up to you who you appoint as your agent. Some persons who come to mine are your spouse, a child, another relative, or a close friend.
Remember the person you choose will have substantial power over your financial and legal affairs. Therefore, it is important that your agent be responsible and trustworthy.
Because you need a third party to assess capacity and because you need to be certain that the formal legal requirements are followed, it can be risky to prepare and execute legal documents on your own without representation.
To execute a durable power of attorney before it’s too late, contact your elder law attorney.