Crisis PlanningWills, Trusts, and Estate PlanningWhy You Need a Durable Power of Attorney

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Have you considered what would happen if you lost the ability to make decisions for yourself?  What would you do if you became impaired from a stroke, car accident, dementia or a whole host of other afflictions that would affect your ability to make your own decisions?  As we age and face health issues, we become more vulnerable to this possibility.  If this happens, how would you make sure your interests are protected and wishes followed?  Who will be able to access your bank accounts to pay your bills or make other financial decisions for you?

Durable Power of Attorney

One solution in Massachusetts is a Durable Power of Attorney.  This legal document allows you to appoint another person, your “attorney in fact”, to step into your shoes and make decisions (except for medical decisions – this is done by the Health Care Proxy) on your behalf if you are unable to do so for yourself.  The person you appoint should be someone that you trust and will act as you would want.  One benefit to the Durable Power of Attorney is that you can make it to only become effective upon your incapacitation.  This is often referred as a “springing” Durable Power of Attorney.

Why I need it

Having a Durable Power of Attorney in place avoids many problems.  The most significant is that it avoids your family having go through the time consuming, expense, and embarrassment of having you publicly declared incompetent in a Probate Court to have a conservator or guardian named to manage your affairs.  For example, if you become incapacitated through illness or injury and your spouse needs to refinance your house to pay the medical bills, who will sign for you?   Without a Durable Power of Attorney in place, no one has the authority to act on your behalf.  Even if the property is jointly owned with your spouse, he or she still cannot sign on your behalf to obtain a mortgage.  Your family would need to petition the Probate Court, incurring the expense and delay, to have a conservator appointed to sign for you.

Having a properly drafted Durable Power of Attorney in place can avoid all that.  No one needs to go through the Probate Court to get a Conservator appointed to make decisions for you.  With a Durable Power of Attorney in place, you have already identified the person, or “Attorney in Fact”, you want to step in your shoes and act on your behalf.  That often includes the authority to borrow money or access your bank accounts when money is needed for your care.

Revoking a Power of Attorney:

The Durable Power of Attorney can be revoked at any time once you regain your competency. All you need to do is send written notice to your Attorney in Fact notifying him or her that you have revoked the legal document.  This often happens when someone recovers after having a stroke and can now manager their own affairs again.  Make sure you also give written notice of the revocation to any third party, such as a bank or financial institution, that your Attorney in Fact was working with during your incapacitation.

Summary:

Planning in case you become incompetent is not a pleasant exercise but important for you to consider.   A properly drafted Durable Power of Attorney reflects your wishes, values and what is important to you.  It is also one of the least expensive documents you can put in place that gives you and your family the peace of mind in case something happens to you.

Founded by nurse attorney and with offices in Acton, Burlington, and Sudbury, Massachusetts, Generations Law Group helps families navigate the complex areas of estate planning, elder law, and probate to inform and protect loved ones of every generation.

 

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