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Estate
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Living Wills
- Glossary
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Powers of Attorney
Kurtz & Peckham’s estate
planning services include
drafting and executing powers of
attorney in a convenient and
inexpensive manner.
Powers of attorney can be
extremely useful for those
persons who are concerned about
their own possible loss of
mental competence in the future.
A power of attorney must be
executed by a person before he
or she becomes incompetent. If a
person is already incompetent, a
conservatorship proceeding must
be started in the probate court
to get authority to take control
of that person’s property and
transact business for them.
A power of attorney is an
authorization by you to allow
some other person, called your
“attorney in fact,” to transact
business for you and in your
name while you are alive. A
“limited” or “special” power of
attorney authorizes the attorney
in fact to act for you only in a
limited capacity – such as to
sell your house or to sell your
car. A “general” power of
attorney authorizes the attorney
in fact to act for you in any
business transaction at all.
A power of attorney is not a
will. It does not dispose of
any property when you die. The
authority of the attorney in
fact expires on the death of the
principal (the person giving the
power of attorney). Powers of
attorney cannot be used in place
of a will or trust because they
are not valid after your death.
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Durable powers of attorney
for finances come in two
basic types:
1) A “Springing” durable
power of attorney allows
your agent to handle your
financial affairs (such as
paying bills, getting into
accounts) IF you become
incapacitated. (This is also
called a “Standby” power of
attorney). The “Springing” power
of attorney allows you to
maintain full control of all
your assets while you are
competent.Through this
instrument, your power of
attorney will not become
effective until you become
mentally incompetent to carry on
business affairs.
If you regain capacity, your
agent loses this power – unless
and until you become
incapacitated again.
2) An “Immediate” durable
power of attorney goes into
effect immediately, regardless
of whether you are
incapacitated or not.
This type of power of attorney
stays in effect until a
specified date is reached, an
event occurs, or the
person who made it revokes it.
This is often used when a person
losing capacity or when the
maker is going to be out of the
country
for an extended period of time.
If you do not have a durable
power of attorney for finances
and you become incapacitated,
often the only thing your family
(or friends) can do is go to
court and obtain a
conservatorship. This process
can take months and be
expensive.
Frequently your spouse or
partner is your primary agent,
and then adult children or
friends are successor agents in
case your primary agent is
unable or unwilling to act on
your behalf.
A durable power of attorney for
healthcare is a type of Advanced
Medical Directive. See our
section on Living Wills for more
discussion of these medical uses
of powers of attorney.
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