Durable Power of Attorney
Your California Durable Power of Attorney authorizes someone (your agent, aka attorney-in-fact) to handle your financial affairs if you cannot do so. Our California Estate Planning Attorneys are experienced in this area of the law and can create a Durable Power of Attorney that suits your needs.
Without a properly drafted Durable Power of Attorney, your loved ones could face obstacles when they try to deal with your bank, brokerage, insurance companies, even your utility companies! You could even become the subject of a costly and intrusive court guardianship.
You can put your mind at rest by including a Durable Power of Attorney in your estate plan. That way, you will know that someone you know and trust – not the courts – will handle your affairs if you become incapacitated.
California currently recognizes two types of Durable Power of Attorney:
Immediate Power of Attorney: Allows your agent to immediately begin handling your financial affairs.
Springing Power of Attorney: Enables your agent to act only when you are incapacitated.
Your California Durable Power of Attorney is a powerful legal tool, but it does not automatically give your agent the ability to do anything you could do yourself. You must identify the specific powers you want to give to your agent. These powers must be considered within the broader context and goals of your estate plan. For example, if you anticipate doing Medicaid planning, you will likely want to empower your agent to make gifts on your behalf in order to reduce your assets and hasten your Medicaid eligibility for nursing home care. That said, your Durable Power of Attorney must also include appropriate restrictions on your agent so that you are protected from possible financial abuse. Our experienced Elder Law/Estate Planning lawyers have prepared Powers of Attorney for thousands of clients and will discuss your specific needs with you.
We can also help you evaluate who to select as your agent. Many people believe that the person with the most financial sophistication is the best choice, but that is not always the case. It is more important that the agent be trustworthy, have common sense, and have the time required to assist you with your affairs. Also, if you are naming co-agents, you must decide if those individuals will have the ability to act alone, or if you want them to act together. It is essential to determine whether those individuals can get along with one another.
ADDITIONAL DISABILITY PROTECTIONS TO CONSIDER: PROS AND CONS
Own Assets Jointly
Many spouses co-own assets. Many parents co-own assets with their adult children. This allows the co-owner to step in and manage that asset should you become incapacitated. However, joint ownership is not always wise. It can present significant disadvantages for couples whose estates are taxable. And when your child is a co-owner of your asset, that asset becomes vulnerable to your child’s creditors, lawsuits, etc.
A Living Trust (aka Revocable Trust) is an instrument that allows you to appoint one or more successor trustees to manage Trust assets. But since there are other tasks that will be required beyond handling Trust assets alone – for example, dealing with your pension provider or changing your address at the post office — we always recommend that clients with a Revocable Trust also include a Durable Power of Attorney in their estate plan. Living Trusts detailed information.