A power of attorney is an important legal document that allows a person, known as the principal, to designate a person of their choice to become their agent, acting on their behalf. This is usually done when the principal is unable to manage their financial affairs due to disability, illness or incapacity. It must be done while the principal is still competent, notes Delco Times in the article “What’s the difference between guardianship and power of attorney?” There are also instances when power of attorney is used when the principal is unable to conduct their own affairs, because they are traveling or are deployed overseas.
Related documents are the health care power of attorney and the durable power of attorney. A durable financial power of attorney is a document where the principal designates the powers that the agent may exercise over their finances. The powers granted by this document can be used by the agent, regardless of the principal’s capacity or disability.
The principal has the option to grant very broad authority to their agent. For instance, the principal could give their agent the authority to gift all their assets, while they are still living. That’s why it is very important for the specific provisions in the power of attorney to be carefully reviewed and tailored to the principal’s wishes. There are risks in naming an agent, since they are able to exercise complete control over the principal’s assets. The agent must be 100% trustworthy.
A health care power of attorney allows an agent to make decisions about the principal’s health. Note that this document is operative only when a copy is provided to the attending physician, and the physician determines that the principal is incompetent.
Both health care power of attorney and financial power of attorney may be revoked by the principal at any time and for any reason.
If the principal has not had these documents prepared in advance and then becomes incompetent by reason of injury, illness, or mental health issues, they may not have the legal right to sign the power of attorney. When this happens, it is necessary for a guardianship proceeding to occur, so that other people may be named to take charge of the person’s financial and health affairs. Advance planning is always preferred.
If an individual is born with a disability that impacts their capacity and upon attaining legal age, does not have the capacity to sign a power of attorney, then a guardianship proceeding will be necessary. The court must determine if the person is truly incapacitated and if there might be an alternative to appointing a guardian. Once the guardian is appointed, the principal no longer has the legal right to make decisions on their own behalf.
A guardianship is a much more restrictive tool than a power of attorney. For one thing, the power of attorney generally does not need the involvement of the court. There is always the possibility that a guardian is appointed who does not know the family or the individual. A durable power of attorney allows a person to appoint someone they know and trust to help them and their family, if and when they become incapacitated.
Speak with your estate planning attorney about how power of attorney works, and when guardianship issues might arise. Being prepared in advance by having the right documents in place, is always better than having the family going to court and hoping that the right decisions are made.
Reference: Delco Times (May 8, 2019) “What’s the difference between guardianship and power of attorney?”
- What’s the difference between guardianship and power of attorney?
- A durable financial power of attorney is a document
Here’s How You Know You’re an Adult: 10 Documents
Fifty is a little on the late side to start taking care of these important life matters. However, it is better late than never. It’s easy to put these tasks off, since the busyness of our day-to-day lives gives us a good reason to procrastinate on the larger issues, like death and our own mortality. However, according to Charlotte Five’s article “For ultimate adulting status, have these 10 documents by the time you’re 35,” the time to act is now.
Here are the ten documents you need to get locked down.
Here’s How You Know You’re an Adult: 10 Documents
A Will. The last will and testament does not have to be complicated. However, it does need to be prepared properly, so that it will be valid. If your family includes minor children, you need to name a guardian. Pick an executor who will be in charge when you pass. If you don’t have a will, the law of your state will determine how your assets are distributed, and a court will name a guardian for your children. It is better to have a will and put your wishes down in writing.
Life insurance. There are two basic kinds: term insurance, which covers about twenty years, and universal or whole, which covers you for your lifetime. You need enough to cover your liabilities: your home mortgage, college funding for your kids and any outstanding debts, like credit cards or a car loan. This way, you aren’t saddling heirs with your debt.
Durable power of attorney. This document lets you designate someone to pay your bills, manage your money and make financial decisions for you, if you become incapacitated. Without it, your relatives will need to go to court to be appointed power of attorney. Pick a trusted person and have the form done, when you meet with your estate planning attorney.
Twice your annual income in savings. Most Americans don’t do this. However, if you start saving, no matter how small an amount, you’ll be glad you did. You need savings to avoid creating debt, if an emergency occurs. A cash cushion of six months’ worth of monthly expenses in a savings account will give you peace of mind.
Insurance coverage. Make sure that you have the right insurance in place, in addition to life insurance. That means health insurance, auto insurance and disability insurance.
Credit report. People with better credit reports get better rates on home and auto loans. You can get them free from the big credit reporting services. Make sure everything is correct, from your address to your account history.
A letter of instruction. Where do you keep your estate planning documents? What about your bank statements, taxes and insurance documents? What about your digital assets? Keep a list for easy access for those who might have to figure out your affairs.
Retirement plan. Most people only know they don’t have enough saved for retirement. That’s not good enough. If you aren’t enrolled in your company’s 401(k) or other retirement savings plan, get on that right away. If your company matches contributions, make sure you are saving enough to get every bit of those matching dollars. If your company doesn’t have a retirement plan, then open an IRA or a Roth IRA on your own. You should try to contribute as much as you possibly can.
Updated resume. It also helps to do the same thing with your LinkedIn profile. No matter how long you’ve been in your field, everyone looks at your LinkedIn profile to see who you are and what and who you know. Make sure you have an updated resume, so you can easily send it out, whether it’s a casual conversation about a speaking opportunity or if you’re starting to look for a new position.
A budget. Here’s how you know you’re really an adult. Budgets went out of fashion for a while, but now they are bigger than avocado toast. If you don’t know what’s coming in and what’s going out, you can’t possibly have any kind of control or direction over your financial life. Start tracking your expenses, matching with your income and making any necessary changes.
One last thing—do you have a bucket list? Don’t wait until you’re 70 to consider all the places you’d like to go or the people you’d like to meet. It’s true–you only live once, and we should enjoy the ride.
Reference: Charlotte Five (April 23, 2019) “For ultimate adulting status, have these 10 documents by the time you’re 35”
3. does not need the involvement of the court
Here’s Why a Basic Form Doesn’t Work for Estate Planning:
It’s true that an effective estate plan should be simple and straightforward, if your life is simple and straightforward. However, few of us have those kinds of lives. For many families, the discovery that a will that was created using a basic form is invalid leads to all kinds of expenses and problems, says The Daily Sentinel in an article that asks “What is wrong with using a form for my will or trust?”
If the cost of an estate plan is measured only by the cost of a document, a basic form will, of course, be the least expensive option — on the front end. On the surface, it seems simple enough. What would be wrong with using a form?
Actually, a lot is wrong. The same things that make a do-it-yourself, basic form will seems to be attractive, are also the things that make it very dangerous for your family. A form does not take into account the special circumstances of your life. If your estate is worth several hundreds of thousands of dollars, that form could end up putting your estate in the wrong hands. That’s not what you had intended.
Another issue: any basic form will that is valid in all 50 states is probably not going to serve your purposes. If it works in all 50 states (and that’s highly unlikely), then it is extremely general, so much so that it won’t reflect your personal situation. It’s a great sales strategy, but it’s not good for an estate plan.
If you take into consideration the amount of money to be spent on the back end after you’ve passed, that $100 will becomes a lot more expensive than what you would have invested in having a proper estate plan created by an estate planning attorney.
What you can’t put into dollars and cents, is the peace of mind that comes with knowing that your estate plan, including a will, power of attorney, and health care power of attorney, has been properly prepared, that your assets will go to the individuals or charities that you want them to go to, and that your family is protected from the stress, cost and struggle that can result when wills are deemed invalid.
Here’s one of many examples of how the basic, inexpensive form created chaos for one family. After the father died, the will was unclear, because it was not prepared by a professional. The father had properly filled in the blanks but used language that one of his sons felt left him the right to significant assets. The family became embroiled in expensive litigation, and became divided. The litigation has ended, but the family is still fractured. This was not what their father had intended.
Other issues that are created when forms are used: naming the proper executor, guardians and conservators, caring for companion animals, dealing with blended families, addressing Payable-on-Death (POD) accounts and end-of-life instructions, to name just a few.
Avoid the “repair” costs and meet with an experienced estate planning attorney in your state to create an estate plan that will suit your needs.
Reference: The Daily Sentinel (May 25, 2019) “What is wrong with using a form for my will or trust?”
I hope this blog post answers Here’s Why a Basic Form Doesn’t Work for Estate Planning.
COMPASSIONATE & PERSONALIZED LEGAL ASSISTANCE
When an individual is mentally or physically disabled or impaired, the court may appoint a legal guardian for that individual. It is the guardian’s responsibility to carry out decisions for the disabled or impaired individual (known as the “ward”), both financial and non-financial. Typically, guardians are established for those who have longstanding mental or physical disabilities, or those who do not have a power of attorney and become impaired due to unforeseen accidents, such as a car crash, truck collision, or other personal injury.
If you are seeking adult guardianship for a loved one, it’s important that you have the assistance of an experienced Queens County guardianship attorney on your side. At the Law Office of Frank Bruno, Jr., our guardianship attorney in Queens County has more than two decades of legal experience, giving him the skills, resources, and knowledge of the legal system he needs to aggressively advocate for you. We also assist clients who wish to establish a guardian in the event that they themselves become unable to make financial and non-financial decisions in the future.
WHAT ARE THE RESPONSIBILITIES OF A LEGAL GUARDIAN?
While a legal guardian is not a caretaker and therefore is not expected to manage every detail of the ward’s day-to-day life, certain responsibilities fall to the guardian.
These responsibilities include:
⦁ Handling financial and medical decisions for the ward
⦁ Ensuring all proper care is available and maintained
⦁ Overseeing the availability of educational and medical services
⦁ Sending court updates on the condition of the ward
The main responsibility of a legal adult guardian is to make any and all decisions on behalf of the ward that they are not capable of making on their own.
WHO CAN BE SELECTED AS A GUARDIAN?
While various factors are always considered, guardians are typically chosen based on specific qualifications. The guardian must be over the age of 18, free of any felony of gross misdemeanor charges (including implications of dishonesty such as bribery or forgery), and the guardian must be found capable of making the necessary decisions on behalf of the ward.
Typically, the court will take the wishes of the ward, if any, into account when appointing a guardian. If the ward is unable to make their wishes known or has no preference, the court will determine if the ward has a power of attorney. If no power of attorney has been named, guardianship usually falls to a family member, including a spouse, parent, sibling, adult child, grandparent, or another member of the ward’s family.
HOW OUR FIRM CAN HELP
Whether you are seeking guardianship of a family member or loved one, or you wish to prepare a power of attorney for yourself in the event of an unexpected accident, the Law Office of Frank Bruno, Jr. can help. Our Queens County guardianship attorneys have helped thousands of clients navigate the legal process, and can provide you with sound, objective advice and skilled representation. No matter your family law concern, we offer personalized services tailored to your unique situation, along with free initial consultations to assess every detail of your specific circumstances.