Natalie A. Roberts, J.D., LL.M.
Natalie A. Roberts, J.D., LL.M.

Power of Attorney: Protecting Your Wealth

The wealth, property, and investments we accrue over a lifetime are often significant. While you have carefully managed your finances through the years, there may eventually come a time when you cannot handle such decisions. To plan for the likelihood that you are unable to manage your financial affairs, it is important to have everything in order while you are still of sound mind. For starters, you will create and execute a durable power of attorney, authorizing your “attorney-in-fact” (sometimes also called your “agent”) to manage your financial affairs for you if you become incapacitated, meaning you cannot manage them yourself. For most of us, this is the most important estate planning decision to make while you are healthy!  Assigning the duty to a trusted relative, loved one, friend, or professional can help ensure your financial matters are taken care of and your wishes are respected. Financial powers of attorney give the designated agent the power to manage your money should you become incapacitated or pass away. Understanding the different types of financial powers of attorney can help you make an educated choice for yourself as to when and what type of assistance you may need.

Failing to properly designate someone to make your financial decisions prior to your incapacity could force your loved ones to go to court to have someone appointed. The court can appoint anyone it chooses to handle your finances. If you want someone, in particular, you must sign a power of attorney. No one is automatically able to act for you! Most states require that you legally appoint someone through the use of a legal instrument, and specify what actions you authorize that person to take on your behalf.

going to court to get a Power of Attorney

How Much Authority to Give, with Your Power of Attorney?

A power of attorney can be as general or as limited in scope as you would like. A limited power of attorney allows someone else to act in your place for a very limited purpose. For example, you might opt to pursue this option if you need to sign a deed on a day you are out of town. Arranging for someone to represent you and sign on your behalf is possible through a limited power of attorney. With a limited power of attorney, the agent’s authorization is limited to the financial matters specifically authorized in the document.

A general power of attorney, on the other hand, is a good option for a comprehensive approach. Your attorney-in-fact can sign any and all documents on your behalf, whether or not you are incapacitated. They can also pay your bills, conduct financial transactions, and generally manage your property and money. Anyone who could use an extra set of eyes on their finances may find this option useful.

When Should My Agent Act?

Just as there are different scopes of authority you can give your attorney-in-fact, you can also choose when you want the power of attorney to expire. In most cases, the legal instrument goes into effect the moment you sign it and remains in effect until you pass away, unless you rescind it while you are of sound mind.

Springing powers of attorney, on the other hand, allow your attorney-in-fact to act on your behalf if and only if you become incapacitated. (Some states, including Florida, do not allow springing powers of attorney.) Criteria outlining what constitutes incapacity should be properly addressed in the document. Note that this a springing power of attorney can be cumbersome for your attorney-in-fact. In many cases, if he or she tries to transact business on your behalf using a springing power of attorney, the financial institution will want proof that you are incapacitated, which is often a tedious and time-consuming process.

Regardless of your priorities, there is a power of attorney right for your situation and goals. Determine your specific needs for an attorney-in-fact while you are of sound mind. Of course, nothing tops the advice and recommendations of an attorney experienced in these matters, so if you are wavering between your options, give us a call.

Natalie A. Roberts, J.D., LL.M.

Natalie A. Roberts, J.D., LL.M.

Natalie Roberts is licensed to practice in both Florida and Minnesota. She is dedicated to providing honest, exceptional and deeply personalized legal counsel to her clients.

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