A power of attorney is a legally binding device that is used to appoint someone else to act on your behalf. When you grant a power of attorney you are called the principal or grantor. The individual that you choose to act on your behalf is called the agent or attorney-in-fact.
When you create a power of attorney, it is typically going to go into effect right away unless you stipulate otherwise.
Durable Power of Attorney
In the field of estate planning, durable powers of attorney are utilized to account for the possibility of incapacity. A significant percentage of people become incapacitated and unable to make their own decisions at some point in time.
If you do not name your own decision maker in advance, a guardianship proceeding could be convened if you became unable to handle your own affairs. Under these circumstances the state would appoint a guardian to act on your behalf.
You can prevent a guardianship and select your own representative through the execution of a durable power of attorney.
You may wonder what the durable designation is all about. A standard power of attorney that is not durable would not remain effective if the grantor was to become incapacitated. Durable powers of attorney do remain intact upon the incapacitation of the grantor.
It is possible to create a springing durable power of attorney. This type of POA would only go into effect if the grantor was to become incapacitated.
The springing durable power of attorney may sound like the ideal solution, because you do not have to grant the power while you are still of sound mind. However, there are some drawbacks to consider.
Proof must be presented that you are in fact incapacitated before the power can become effective. This can create procedural difficulties that could have been easily avoided.
Incapacity Is Widespread Among Elders
You should definitely take the possibility of future incapacity quite seriously and make the appropriate advance preparations. There are other causes of incapacity, but Alzheimer’s disease alone is enough to get your attention.
Approximately 45 percent of the oldest old are suffering from Alzheimer’s disease according to the Alzheimer’s Association. The term “oldest old” is used in geriatric circles to describe people who are at least 85 years of age.
Once you reach the age of 65 it becomes likely that you will live into your 80s. When you put these facts together you can see that incapacity planning is important for all responsible adults.
Incapacity Planning Consultation
If you would like to discuss incapacity planning with a licensed estate planning attorney, our firm can help. We offer free consultations to people here in the greater Hartford area, and you can request an appointment through this website.
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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