A power of attorney is a document that is used to give someone else the ability to make legally binding decisions on your behalf. The document is meant to serve your needs, and you can shape it to do just that.
Incapacity Planning
The type of power of attorney that is used for incapacity planning purposes is the durable power of attorney. This type of POA will remain active if you become incapacitated. When you have a durable power of attorney in place, your hand-picked representative will be able to act on your behalf should you become incapacitated and unable to handle your affairs on your own.
If you did not have a durable power of attorney in place and you were to become incapacitated, the state could be petitioned to appoint a guardian to act for you.
A durable power of attorney is effective whenever you say that it is. It can go into effect right away, you could set a future date when it would become effective, or you can stipulate that the power of attorney should go into effect when a certain event takes place.
When you are using a durable power of attorney for incapacity planning purposes, there is no point in setting a specific future date when it would become active, because you do not know if or when you will become incapacitated.
In some jurisdictions it is possible to create a springing durable power of attorney. This type of power of attorney would go into effect only if you were to become incapacitated. A springing durable power of attorney can sound like a good choice, but there are some reasons to take pause.
Clearly, you are going to appoint an agent or attorney-in-fact to act on your behalf that you trust implicitly. With a springing durable power of attorney, there are hurdles that must be crossed before the device can become active.
While the agent may be able to obtain certifications from physicians that you are unable to manage your finances, the agent may have to prove to the court that you are in fact incapacitated. This can be a time-consuming hassle that causes problems for all concerned.
When you examine these options, you may decide that it is best to allow the power of attorney go into effect immediately.
Incapacity planning is important for all responsible adults. Alzheimer’s disease strikes over 40 percent of people over the age of 85, and 13 percent of all seniors are suffering from the disease. These statistics are enough to make incapacity planning essential, but Alzheimer’s is not the only cause of incapacitation.
If you would like to put an incapacity plan in place, our firm can help. We offer free consultations to people in and around Charlotte, North Carolina, Huntersville, North Carolina, Florence, Kentucky and Ashland, Kentucky. Contact us through this website to set up an appointment.
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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