If you are getting older or suffer from chronic health problems, chances are that you have thought about what would happen if you were unable to care for yourself at some point. Fortunately, there are legal tools, such as the power of attorney, that can help you prepare for that eventuality and ensure your needs will be taken care of. However, before you sign your power of attorney, you should consider these five factors that might affect how you write it:
- Who do you trust with your power of attorney?
Perhaps the most important question you need to ask when designating someone to receive your power of attorney (known as your attorney-in-fact) is who you entrust with that kind of power over you. This is because whoever holds your power of attorney can make legal and financial decisions on your behalf and can access your personal assets for those purposes. This power can be easily abused, so you should make sure whoever you grant your power of attorney is someone you can trust implicitly with your most important decisions and most valued property.
- Do you want it to be limited?
A power of attorney can be broad, granting extensive powers to your attorney-in-fact, or it can limit the scope of the authority granted to them. While a general power of attorney can be more useful in terms of ensuring your attorney-in-fact can carry out their duties, there may be reasons for you to want to limit their authority. Always consider how much power your want your attorney-in-fact to have and be prepared to tailor your power of attorney accordingly.
- Do you want it to be durable?
Under normal circumstances, a power of attorney ends if the person who signed it loses their capacity to make legal decisions or if it is revoked by the person who granted that power. A durable power of attorney endures beyond that point, however, meaning someone can continue making decisions for you while you are incapacitated. Typically, a power of attorney used in estate planning will be durable, but make sure you understand that if you become incapacitated, your power of attorney may stay in effect for the rest of your life.
- Is a springing power of attorney appropriate?
Typically, a power of attorney comes into effect the moment it is signed. However, you can make your power of attorney “spring,” meaning it only comes into effect once you become incapacitated. This can be useful if you are currently able to care for your own affairs right now and are simply preparing for the eventuality of incapacity. If you make a springing power of attorney, however, make sure to define criteria for determining when you are incapacitated, to avoid potential confusion or abuse later.
- What happens if you get better?
While it is typically assumed in elder law that incapacity will be a long-term problem, in some cases people do recover from whatever condition has incapacitated them. If your power of attorney does not account for this possibility, however, your power of attorney will remain in effect even once you get better. Thus, you should make sure your power of attorney has a provision accounting for this possibility, along with criteria to determine when you have recovered from incapacity.
The elder law attorneys at David J. Lorber & Associates, PLLC will thoroughly analyze your estate and work with you to determine the best means of transferring your assets, minimizing taxes, and ensuring your needs are met. For comprehensive estate planning services in New York, call David J. Lorber & Associates, PLLC at (631) 750-0900 or contact us online to schedule a free consultation at our Setauket office.