When you are planning ahead for the future you have to consider the eventualities of aging. As a senior citizen you may become unable to handle all of your own affairs. You can name someone to act on your behalf in the event of your incapacitation by executing a certain type of power of attorney called a durable power of attorney.
Durable powers of attorney remain in effect even if you become incapacitated.
The Anatomy of a Durable Power of Attorney
A durable power of attorney essentially involves two different players. There is the person creating the power of attorney. This individual is known as the grantor or principal.
The grantor of the power of attorney names someone to act on his or her behalf. This representative is called the attorney-in-fact or agent.
There are those who may assume that an attorney-in-fact must be a person who is licensed to practice law. In fact, you don’t have to be a lawyer to act as an attorney-in-fact under a power of attorney.
There are no particular professional qualifications that you must have to serve as an agent or attorney-in-fact. Essentially, anyone can act as an agent under a power of attorney as long as the individual who has been named is an adult who is of sound mind. Of course, the person that is selected to act as the agent does have to be willing to serve in the role.
Things to Consider When Choosing an Agent
You have few limitations when it comes to selecting an agent from a legal perspective. However, from a practical perspective, you should definitely look for certain qualities.
Let’s say that you execute a durable financial power of attorney. The agent that you empower to act on your behalf is going to be handling your financial affairs. Clearly, this is a very important responsibility that requires a particular skill set.
The agent that you choose should be a business savvy individual who is completely trustworthy. You should also be aware of potential conflicts of interests. If real or perceived conflicts of interest arise, disagreements among family members can ensue. These disagreements can elevate into legal battles.
Ideally the agent should be someone who is beyond reproach or “above the fray” as it were.
Because of the fact that the agent would logically be stepping in when you reach an advanced age, you should consider the age of the agent that you select. In addition, geography is certainly a factor. Your agent should ideally be someone who lives nearby.
It may not be an especially pleasant thought, but incapacity is quite common among elder Americans. You should certainly take steps to prepare for future incapacity when you are planning your estate.
Mr. Nirenstein is licensed to practice before the courts of the State of Connecticut and the United States District Court. He is a member of the Connecticut and Hartford County Bar Associations, and the Estate and Probate, Elder Law, Business Law and Real Estate Sections of the Connecticut Bar Association.
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