A Power of Attorney is a legal document by which an individual gives another person the authority to make decisions and conduct transactions on his or her behalf. The person giving the authority is called the Principal, and the person receiving the power is called the Agent or attorney-in-fact. When created correctly, the Power of Attorney gives the Agent a broad range of powers to handle a wide variety of legal and financial matters on behalf of the Principal in many different contexts.
The person selected as the Principal must be chosen with considerable care. There must be complete and total trust between the Principal and the Agent. Typically, spouses name each other as their Agents. The Principal may also want to consider appointing an alternate Agent in case something should happen to the primary Agent.
A “Durable” Power of Attorney is different from a simple Power of Attorney. A Power of Attorney terminates upon the death or disability of the Principal. The Durable Power of Attorney remains in effect if the Principal is incapacitated. It is an especially important provision, especially when the Principal is elderly or has health issues. On the other hand, a “Springing” Power of Attorney becomes effective only if the Principal is deemed incapacitated. At first glance, the Springing Power of Attorney seems preferable as it “springs” into effect only in the circumstances that it was primarily intended for — the incapacity of the Principal. However, to take effect, a physician has to certify the Principal is incapacitated, which can leave an Agent unable to act when needed. Additionally, a Springing Power of Attorney can lead to additional problems, as third parties can be reluctant to accept them.
Ventura County, California law provides an actual short form that can be used to establish Power of Attorney. The form includes a list of powers granted to the Agent and includes a catch-all phrase “all other matters”. The list includes real estate, banking, insurance and estate transactions, as well as retirement benefits and tax matters. The Principal may grant the Agent all of the listed powers or limit them to specified powers. However, the basic form is often insufficient in establishing specific powers to the Agent. For example, if a spouse is named Agent, they cannot normally transfer any assets to themselves. This power must be specifically stated in the Power of Attorney, and is not included in the standard form.
Attorney Daniel A. Higson of Ventura County, CA is well qualified to prepare a Power of Attorney and assure that it fits your needs. He can help you navigate the numerous areas not covered by the standard form. Among the powers that can be included are matters involving Medicaid and other government benefits, authority to apply for and claim government benefits, and an authorization to make gifts and transfers as part of the process of planning to become eligible for benefits. If there is no Power of Attorney or it does not contain special provisions, the results are expensive, time-consuming, and can create emotional and financial hardship for all involved. A family member may have to commence a guardianship proceeding to have a legal guardian appointed. This process requires court appearances and a thorough investigation by Court-appointed examiners. If a guardian is appointed following a hearing, from that point on, the guardian must file reports with the court annually.
A Durable Power of Attorney is, next to a will, the most important legal document you should have. Having a Power of Attorney tailored to you and your family can make the difference between preserving assets and losing everything.
Call Ventura, California attorney Daniel A. Higson today with any questions about Power of Attorney:
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