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Why Not Just Use an Off-the-Shelf Power of Attorney Form?

Power of Attorney Template
A template Power of Attorney does not fit all situations.

A durable power of attorney is one of the most important estate planning documents you can have. It allows you to appoint someone to act for you (your “agent” or “attorney-in-fact”) if you become incapacitated. Without a power of attorney, your loved ones would not be able to make decisions for you or manage your finances without asking a court to appoint a guardian, which is an expensive and time-consuming process.

There are many do-it-yourself power of attorney forms available; however, it is a good idea to have an attorney draft the form for you. There are many issues to consider and one size does not fit all.

The agent’s powers

The power of attorney document sets out the agent’s powers. Powers given to an agent typically include buying or selling property, managing a business, paying debts, investing money, engaging in legal proceedings, borrowing money, cashing checks, and collecting debts. They may also include the power to consent to medical treatment. Some powers will not be included unless they are specifically mentioned. This includes the power to make gifts, the power to create trusts, the power to apply for benefits on your behalf, and the power to designate beneficiaries of your insurance policies.

The power to make gifts of your money and property and the power to create trusts are particularly important powers. If you want to ensure your agent has the authority to do Medicaid planning on your behalf in the event you need to enter long term care, then the power of attorney must give the agent the power to modify trusts and make gifts. The wording in a power of attorney can be significant, so it is necessary to consult an attorney.

Springing or immediate

The power of attorney can take effect immediately or it can become effective only once you are disabled, called a “springing” power of attorney. While a springing power seems like a good idea, it can cause delays and extra expense because incapacity will need to be determined. If the power of attorney is springing, it is very important that the method for determining incapacity is clearly spelled out in the document.

Joint agents

While it is possible to name more than one person as your agent, this can lead to confusion. If you do have more than one person named, you need to be clear whether both parties need to act together or whether they can each act independently. It might make more sense and be less confusing to name an alternative agent to act in case the first agent is unable to.

Executing the power of attorney

To be valid, a power of attorney must be executed properly. Some states may require a signature, others may require the power of attorney to be notarized, and still others may require witnesses. It is important to consult with an estate planning attorney in to ensure your power of attorney is executed according to Indiana law.

For more information on powers of attorney, click here and here.

Contact the Stinson Law Firm today to review your estate plan goals and prepare a plan tailored to your individual needs at www.stinsonlawfirm.com or (317) 622-8181.