Los Angeles & Estate Planning Lawyers Providing Durable Power of Attorney Drafting
When a person becomes incapacitated from an illness or an accident, family members and loved ones shouldn’t need to worry over how to manage their estate on top of getting them the ongoing medical attention they need. A durable power of attorney is a legal means of planning for such contingencies ahead of time by delegating power to a trusted individual or attorney to make decisions on your behalf regarding health and financial matters.
Drafting such a durable power of attorney is a delicate business and necessitates working alongside a highly-knowledgeable Los Angeles estate planning attorney to ensure your wishes are adequately expressed and preserved. At Oaktree Law, our firm is dedicated to informing our clients of all their legal rights and options before moving forward with a legal solution. This focus on our clients’ goals has earned our firm considerable recognition, especially from the Better Business Bureau. Our experienced team makes your goals our own.
WHAT IS POWER OF ATTORNEY?
Power of attorney (POA) gives legal authority for an agent or attorney-in-fact to make decisions on your behalf if you become incapacitated. As the “principal”, you can determine the amount of power this authority has in dealing with your personal and financial matters. Whether a trusted spouse, relative, adult child, or friend, an attorney-in-fact has a responsibility to keep accurate records of transactions and knowing what decisions they can and can’t make.
What does a power of attorney do?
You need to make sure you choose someone who you trust when designating them power of attorney. Whoever you choose will be able to do effectively anything they want with your finances in the event you become incapacitated.
Having a durable power of attorney means you can avoid guardianship or conservatorship proceedings. In California, a judge will typically appoint a conservator themselves if you become incapacitated without a power of attorney. Such proceedings can be expensive and are not private, meaning you could risk a family squabble in front of the whole world.
A health care power of attorney details important health care decisions that can be made on your behalf (similar to a living will), such as consenting to or denying medical treatments, diagnostic procedures, and services.
WHAT A POWER OF ATTORNEY CAN’T DO
Although not regulated by the court system, a power of attorney must always act in the principal’s best interest, and can’t:
- Make any changes to the principal’s will.
- Transfer POA to another person.
- Continue making decisions after the principle’s death.
An agent can decline their appointment as the Power of Attorney, but only under limited circumstances choose another person to take over. Upon your death, they can no longer make decisions on your behalf, unless named the executor of your will, or approved by the court to administer your estate.
As mandated by the Uniform Power of Attorney Act created in 2006, a POA gives the principal flexibility in determining how involved the agent is, so long as their faculties are intact. If compensation or gifts are expected by the decision maker, it must be outlined in the Power of Attorney document to avoid any legal issues. Under legal power of attorney, doctors, banks, family members, and other third parties cannot be held accountable for upholding an agent’s sound decisions.
POWER OF ATTORNEY VS. DURABLE POWER OF ATTORNEY
There are different types of Power of Attorney, includes general, special, and health care powers of attorney. Special power of attorney outlines specific functions an agent can perform on your behalf. To make a Power of Attorney durable requires changing the document’s language, which gives an agent authority should you be mentally incompetent at the time it expires. The Power of Attorney will remain enforceable until you regain mental competency.
Non-durable power of attorney, however, ends automatically as soon as you are determined to be incompetent. Depending on state law, all powers of attorney are treated as durable. The extent of the powers is outlined in the document. Another option is to draft the document as a springing durable power of attorney, which delays Power of Attorney until a specified date or event.
Aside from general, durable, and medical power of attorney, you can also give someone limited Power of Attorney. The document tends to be very limited in scope. You could name someone an agent responsible for a property deed signing when you won’t be available. Such a document usually specifies a time at which the agent’s Power of Attorney ends.
What if I already have a living trust?
Having a living trust in place is beneficial in so far as it concedes authority to a successor trustee over matters of finances, when it comes to property management, it is ultimately insufficient when compared with a power of attorney. Many people choose not to transfer their property entirely into a living trust but would rather transfer only assets.
WHY SHOULD I HAVE A POWER OF ATTORNEY?
If you have POA over a loved one, you can make medical decisions if they can’t, including choices regarding hospital care, surgery, and home health care. Living arrangements such as assisted living or a nursing home may have to be made. If you have financial power of attorney, you may be responsible for managing financial accounts, filing the principal’s taxes, and making investment decisions.
WHEN WILL THE POWER OF ATTORNEY BECOME EFFECTIVE?
Durable power of attorney, in most states, becomes effective as soon as it is properly signed. Implementation of an agent’s Power of Attorney is determined by the language in the document. It might be when and only if the principle becomes mentally incapacitated. If the document states powers that go into effect in a certain situation, it becomes a springing power of attorney.
SHOULD I HAVE SEPARATE POWER OF ATTORNEY DOCUMENTS TO ADDRESS EACH ISSUE?
It is a good idea to establish financial and medical Power of Attorney in different documents. Although combining them is possible, separating these issues from one another makes things simpler. If you are filing with a financial broker, health care documents can contain personal details and information beyond their scope of work. Also, you might prefer not to disclose financial information to health care professionals.
You have the options of naming the same agent on both documents or in choosing people you know work well together.
HOW DO I PROTECT MY POWER OF ATTORNEY DOCUMENT OR STATEMENT?
Our Los Angeles estate planning attorney recommends the following if you believe the document may be challenged. You could video tape a power of attorney statement and your intent to sign the document and keep both together. A physician’s statement on your mental state can be obtained at the time of signing, or you can have witnesses present who can testify to your knowledge and voluntary signing of the document.
You could also have a power of attorney lawyer review the document, should an attorney be needed to testify regarding your mental competency.
WHEN WILL THE POWER OF ATTORNEY DOCUMENT BE VOID?
A Power of Attorney document should be registered. Otherwise, it will be automatically terminated if the principal dies or becomes mentally competent. Termination can also proceed per procedures outlined in the original document or by writing, singing, notarizing, and sending a document to the attorney-in-fact via certified or registered mail.
For a registered document, Power of Attorney can be terminated by filing a written revocation, which must be done where the original Power of Attorney was filed. Registered documents can also be voided at the death of the principal, unavailability of an agent or, in some states (including California), the principal’s divorce from the attorney in fact.
HOW DO I CHOSE MY POWER OF ATTORNEY?
There are no legal qualifications for choosing a power of attorney. Anyone who is not a minor or not incapacitated qualifies. The most important thing is to choose somebody you trust; most often, people name their spouse, children, or other family member on their behalf. Regardless, they must agree to being appointed as your agent. You can designate co-agents, or more than one person to act as your agent (but should name successor agents in case one or more aren’t available when needed).
WILL MY POWER OF ATTORNEY EVER EXPIRE?
Renewing a Power of Attorney is becoming less commonplace. In most states, once the document is signed, a durable power of attorney remains valid until your death or the document is revoked. Consult with your lawyer whether including a termination date is a good idea, or if changes in state law apply to your situation.
CONTACT A POWER OF ATTORNEY LAWYER AT OAKTREE LAW TODAY
If you have assets you want protected, speak with an experienced Los Angeles estate planning lawyer from Oaktree Law as soon as you can. You worked hard to build your estate, so make sure you have a say in how it is managed in the unfortunate event of your incapacitation. Trust our firm to preserve your wishes for how you want your assets managed.
Our estate litigation attorneys are available to answer your questions or offer a consultation. We can also provide you with a Los Angeles bankruptcy attorney, estate planning attorneys, or a power of attorney lawyer to help meet your needs. Trust our firm to preserve your wishes for how you want your assets and affairs managed.
Call Oaktree Law today to discuss your needs in more detail: (562) 219-2979.