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Power of Attorney

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Power of Attorney

A Durable Power of Attorney (DPOA) is an important document that should be included in any estate plan.  The DPOA is a document by which one person authorizes another to act as his or her agent.  The person who gives authority is referred to as the “Principal” and the agent is referred to as the “Attorney in Fact.”  The key is the “durable” nature of the power of attorney – this means that the power of attorney remains valid even if the principal becomes incapacitated.  If a power of attorney is nondurable, the authority of the agent to act on behalf of the principal terminates upon the principal’s incapacity.  While the power of attorney is valid, the agent can act on behalf of the principal with respect to matters set forth in the power of attorney and the principal is bound by the agent’s acts.

For the purpose of comprehensive estate planning, there are two main types of powers of attorney:

1)      Financial Matters Power of Attorney
2)      Health Care Power of Attorney

Financial Matters Power of Attorney

A financial DPOA gives the agent/attorney-in-fact the authority to make financial decisions on behalf of the principal.  It can be customized to meet the principal’s own individual needs, but a typical financial power of attorney authorizes the agent to act with respect to matters concerning:

  • Real estate transactions;
  • Personal property transactions;
  • Stock and bond transactions;
  • Banking and other financial institution transactions;
  • Business operations;
  • Insurance and annuities;
  • Estate, trust, wills, and other beneficiary transactions;
  • Claims and litigation;
  • Personal and family maintenance;
  • Social Security, Medicare, Medicaid, Medi-Cal, and other government benefits;
  • Retirement plans;
  • Tax matters;
  • Civil or military benefits.

Generally, a person will designate someone they trust (e.g., a spouse, family member, or close friend) to serve as their agent in the event the person becomes incapacitated.  Often, a married person will create a financial power of attorney and make it valid immediately to allow their spouse to sign financial documents on the person’s behalf.  This tends to simplify the family’s financial planning if one of the spouse’s is travelling or otherwise away from home and cannot sign a document related to a financial transaction, such as a home loan agreement or vehicle purchase.  The same financial power of attorney can designate alternate agents in the event both the person making the financial power of attorney and their spouse become incapacitated.  A properly executed financial power of attorney should be acknowledged by a notary to ensure third parties will accept the document.

If you haven’t executed a financial power of attorney, or it has been years since you have reviewed your current power of attorney, contact Tailored Legal today to schedule a no cost consultation with an estate planning attorney at no cost to you.  During this consultation, you can also discuss your other estate planning needs, including Wills and Living Trusts.

Health Care Power of Attorney

A Health Care Power of Attorney (HCPOA), also known as an Advance Health Care Directive, gives the agent/attorney-in-fact the authority to make health care decisions on behalf of the principal.  Many people often make the mistake of believing their spouse or a family member automatically has the authority to make health decisions on the person’s behalf.  This is a myth.  Without a properly executed health care power of attorney, a doctor, hospital or other health care provider may fail to carry out your medical wishes.  Moreover, it may be impossible to carry out your wishes if you never communicated those wishes to another person.  By creating a health care power of attorney, you can ensure that the person you want making medical decisions on your behalf has the authority to do so.  It will also make known your expectations and desires for medical treatment.    A thorough health care power of attorney will address matters such as:

  • Extension of life treatment;
  • Life sustaining procedures;
  • Pain and comfort;
  • Release of health information under HIPAA and other laws;
  • Waivers for treatment refusal and to leave hospital against medical advice;
  • Autopsies;
  • Organ donor;
  • Disposition of remains through cremation or burial.

A HCPOA is an important part of any comprehensive estate plan and should be addressed simultaneously with your needs for a Will or Living Trust.  At Tailored Legal, our estate planning attorney is experienced in drafting health care and financial powers of attorney to fit the needs of our clients.  Contact us today to schedule a consultation at no cost to you.


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