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  • Daniel Rodriguez

Powers of Attorney—A Necessary Component of Any Estate Plan

There are two categories of powers of attorney: (1) durable power of attorney and (2) advance health care directive. Questions about this legal information? Contact a Roseville estate planning attorney.

Durable Power of Attorney

A “durable power of attorney” is a legal document where the owner of property nominates some other person(s) to have legal authority over his or her accounts and other assets. It takes effect immediately upon being signed. The purpose of the Durable Power of Attorney is to give the nominee powers to act on behalf of the grantor of the power if the grantor is unable to act on his/her behalf. The risk in not having a durable power of attorney is that if the owner of property becomes incapacitated and is unable to pay bills and obligations, that (s)he can suffer harm that may result in the need to appoint a conservator over the estate of the incapacitated person, allowing access his/her accounts to pay bills. A conservatorship is a court proceeding that can be very time-consuming and expensive, and can be avoided if the property owner has a properly executed durable power of attorney.

However, there are serious risks in conferring powers of attorney to a third party. Although a nominee in a power of attorney owes a fiduciary duty to the nominator, there is still the risk of the nominee taking advantage, using the property for personal gain. It is critical that the property owner only nominate persons who are honest, trustworthy, and have integrity.

One available safeguard to help mitigate against potential abuse is to use a “springing durable power of attorney.” Unlike a durable power of attorney, a springing power of attorney does not immediately take effect upon being signed. It takes effect, if at all, when or if the maker subsequently becomes incapacitated as attested to by two independent physicians. Thus, the maker only surrenders control over his finances if and only if he becomes incapacitated in the future. The power of attorney is used only if there is a need for it. Typical provisions dictate that two independent physicians must write a letter confirming that the maker is incapacitated. The springing power of attorney requires that the physician letters be attached to the power of attorney document, which is subject to the review of the person(s) receiving the document.

Which Is Better in California?

There is no right or wrong answer. It depends on the circumstances and what is best for the individuals involved. As a general rule, younger persons use springing powers of attorney because they may not need any assistance for many years or decades, and they do not wish to relinquish any control of finances to another person. Older adults, who may already have their children helping them pay bills, prefer the convenience of a power of attorney that takes effect immediately.

Advance Health Care Directive

Another type of power of attorney document is known as an “advance health care directive,” otherwise known as a “power of attorney for health care.” This document, if properly executed, nominates one or more persons to make health care decisions for or on behalf of the nominator if (s)he is unable to communicate with the physician and give informed consent. Health care providers are required to obtain the informed consent of their patients before performing any medical procedures unless there is a medical necessity to save the life of the patient or prevent serious injury.

The absence of an advance health care directive could have serious adverse consequences for the patient. The patient may end up receiving a medical procedure (s)he did not want or need. There may be delays that compromise his/her health and safety. There may be disagreements among and between different family members, some of whom consent and some of whom do not consent to the procedure, creating conflict between family members.

A sub-issue concerns whether the maker wishes to override the obligation of the physicians to use any and all medical technology and devices to keep the patient alive–even when the patient may be suffering from an irreversible condition and is unable to respond. An advance health care directive can address the patient’s preferences on these difficult end-of-life issues, taking his/her wishes into consideration.

Contact a Sacramento Estate Planning Lawyer for Help Today

In summary, the purpose of powers of attorney is to plan for issues of incapacity and the consequences of incapacity before death occurs. The failure to use powers of attorney may have catastrophic financial results on the estate or estate planning and run contrary to the wishes of the maker in efforts to preserve his/her legacy for the benefit of the family, while still providing dignity and compassion for the remainder of his/her life.

Contact a Sacramento estate planning attorney of the NewPoint Law Group, LLP today for your estate planning and tax law needs.

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