FAQs: Durable General Power Of Attorney
Who should have one?
Everyone 18 or older who has the power to legally act for themselves needs to appoint someone to act for them so they are able to plan for disability or disappearance.
What does it do?
It allows you to appoint a person, your agent, to conduct your affairs if you are unable to do so. This power to act for you becomes effective immediately and survives your disability or disappearance. It is a very powerful document and must be treated as such.
When do you use it?
You use it when you are incapacitated, traveling, or missing. It can be used as a convenience to transact a sale of property while you are on vacation. It allows your dependents to be taken care of if you are missing. It is necessary to avoid costly court proceedings if you are incapacitated.
Where do I keep it?
We recommend keeping it in our fireproof safe under a custodial agreement to prevent it from being abused. It is effective and usable when signed, so if the agent has possession of the document, he has the power to do almost anything on your behalf. This prevents an upset spouse from taking the power you gave him or her and using it to sell your house and move to Mexico with your money.
How does it save me money?
A Durable General Power of Attorney eliminates the need for costly court proceedings. When incapacity strikes, no one can manage your affairs without having a court decide who gets this power, unless you do ahead of time. Guardianship and conservatorship proceedings have a high price. You must pay for attorney’s fees, court-appointed doctors, investigators, appraisers. The person appointed by the court must put up an expensive bond based on your estate’s value.
If I have a Durable General Power of Attorney, under what circumstances will I also need a conservatorship?
When you need the court to help you in acting as the agent. For instance, if illness destroys your wife’s ability to make good decisions, but she has the physical ability to get around, she may write checks for unneeded and expensive items. Even though you have the power of attorney, you must undo the mess she creates. You could avoid this need to undo her actions by petitioning the court to appoint you as her conservator. This allows you to prevent her from creating these difficult situations.
How do I select my agent and backup agents?
You must do this with care. You must choose people that you trust completely. If you do not trust anyone that much, or want added protection, you can choose two or more persons to act jointly so there is a system of checks and balances. Usually clients choose their parents, children, brothers, sisters, a good friend or a business associate.
When do I renew it?
Every five years. Some states have “sunset” laws requiring you to renew your document or it becomes invalid. This logic is spreading among the states, so to be sure it will work when and where you need it, it needs to be current. In addition, the people who will be honoring the document will be hesitant if the document is old. The fact that you might have revised or revoked the document concerns them.
How do I revoke it?
You may either give written notice of revocation to anyone dealing with the agent or record a Revocation of Power of Attorney with the County Recorder in the county where the Durable General Power of Attorney you originally recorded. If your attorney is the custodian of your documents, you need to notify him/her also.
What do I do if someone refuses to honor the Durable General Power of Attorney?
First, fill out the form that we include in your estate notebook. The law requires those who refuse to honor the document to honor it when your agent presents this form. If this fails, call your attorney, he may be able to persuade the person who is refusing. The law is on your side. In addition, you give the power and resources to your agent so he/she can perform the legal steps necessary to make sure that your rights are enforced. There is a price to pay for not cooperating.
How do I handle the situation where I am disabled in a foreign country and I do not have a copy of the Durable General Power of Attorney with me?
To prepare for it, you need to call your attorney and have him make certified copies for you to take on your trip. If you fail to do this, and are stuck in the above situation, you wire your attorney and he will fax certified copies to where you are.
What protection do I have against being double-crossed by my agent?
First, you keep the document under a custodial agreement. This means your agent does not have the ability to use the document until you either instruct that the custodian give he/she the document, three doctors certify that you are disabled, or you agent provides evidence of your disappearance. Next, and most importantly, you must choose your agent with great care. Finally, you may choose two or more co-agents to act jointly. This reduces the chance for abuse. The more steps you take, the safer you are.
For additional information, please call (602) 252-5110.
For additional Preventive Law Studies, visit our website: www.goodsonmanleyforakis.com