Durable Powers Of Attorney
Durable powers of attorney apply to both health care and property decisions. The document establishes another person (called your attorney-in-fact) as the person with decision-making powers regarding your (the principal’s) health care and finances should you become incapacitated or unable to make health and financial decisions for any other reason.
At the Law Offices of David A. Straus in Las Vegas, our lawyer helps people throughout Nevada make these difficult but important decisions regarding their futures. With over thirty years of estate planning experience, our attorney has authored and co-authored several books on the various subjects of estate planning. If you have not modified your durable powers of attorney (also referred to as advance health care or medical directive) since October 2009, you need to consult a knowledgeable estate planning lawyer as soon as possible. Laws concerning property and financial powers of attorney have changed.
Health Care Durable Powers Of Attorney
As you read through the discussions of the various faiths, you’ll learn or be reminded of the positions your faith and other faiths take in regard to things like the right to die, euthanasia, autopsy and the donation of body parts. If you don’t want an autopsy, for example, you’ll want to make sure that your attorney-in-fact knows this. Regardless of your faith, you can’t assume that your attorney-in-fact knows your stance on this. Furthermore, many religions don’t have a firm position on such matters, leaving decisions up to the individual. This is one reason that, no matter how close you are to your attorney-in-fact and how well you know each other, it’s best to put your wishes in writing.
When a loved one falls ill, it is stressful for all concerned. Decisions often have to be made quickly. Recording what you want in writing when you and your attorney-in-fact are calm will help you ensure that your true wishes are clearly communicated and fulfilled.
Financial Durable Powers Of Attorney
Your attorney-in-fact is able to make decisions regarding your property despite your state of incapacity. The durable power of attorney works the same in a will-based plan as in a trust-based plan, but a trust-based plan has an opportunity for substituted judgment.
This is a serious responsibility, and the person chosen as the agent should be above reproach, because, sadly, one quite often reads about an elderly person whose resources have been stolen by a family member who was named as the agent when the principal became incapacitated.
Taking Steps To Protect Your Finances And To Guard Against Abuse
You can control the powers granted to your attorney-in-fact. There are really no effective methods to prevent abuse, but some things that may be done include:
- Requiring multiple signatures on any check or withdrawal over a reasonable amount.
- Assigning a committee of agents to make decisions and other typical financial limitations on one agent’s ability to engage in financial abuse.
The “safety-net” with a trust-based plan is that all property held in the name of the trust is automatically managed by the successor trustee named in the trust to make substituted judgment — typically the spouse first and other family members subsequent to the surviving spouse’s ability or desire to be the successor trustee.
In effect, the trustor, the person transferring the property to the trust, provides powers of management to successor trustees if incapacity occurs. A trust-based plan also involves a durable power of attorney in case there are assets outside of the ownership of the trust.