A power of attorney consists of the grantor or principal and the agent or attorney-in-fact. The grantor is the person who is granting the power of attorney. The agent or attorney-in-fact is the individual who is empowered to act on behalf of the grantor.
Because the term attorney-in-fact is utilized, there are those that harbor a misconception. They are under the impression that you must be a lawyer to act as an agent. In fact, this is not the case. In this context the term attorney is used to generically describe a representative. Any adult who is of sound mind can act as an agent under a power of attorney, assuming the individual in question is willing to act in the role.
Incapacity Planning
Powers of attorney are used by estate planning attorneys for incapacity planning purposes. A significant percentage of people become incapacitated and unable to make their own decisions late in their lives. If you were to become incapacitated without taking any steps in advance, the state could be petitioned to appoint a guardian to manage your affairs.
You can take a big step to take the matter into your own hands and appoint a potential decision-maker of your own choosing through the execution of a particular type of power of attorney. A standard power of attorney would no longer be active upon the incapacitation of the grantor. For this reason, durable powers of attorney are used to prepare for possible incapacity. A durable power of attorney would remain in effect upon the incapacitation of the grantor.
When you are selecting an agent to act on your behalf, you should keep some practical considerations in mind. You should have your durable power of attorney in place while you are still relatively young, because you never know what the future holds.
If you choose an agent who is quite a bit older than you are, will the agent still be alive and well if and when you become incapacitated? You should certainly consider the age of the agent that you are empowering.
There is also the matter of geography. You want to select an agent who lives nearby if it is at all possible, because he or she may be acting on your behalf on an ongoing basis at some point in time.
Incapacity planning is a must for all responsible adults. Over 40 percent of people who are at least 85 suffer from Alzheimer’s disease, and Alzheimer’s is not the only cause of incapacitation. If you do nothing, you are taking a big risk.
We would be glad to assist you if you would like to put an incapacity plan in place. You can request a free consultation through this website.
John’s practice focuses on the use of Wills and Living Trusts in Estate Planning to help individuals protect their families and preserve their legacies after their deaths, but his practice also focuses on the critical issues of protecting individuals with dementia or other diminished capacity, assisting individuals in qualifying for Medicaid and other government benefits to offset the costs of long-term care, and providing special needs planning.
John is admitted to practice law in North Carolina, South Carolina, Kentucky, and Ohio, and he is accredited by the Department of Veterans Affairs.
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