The Power of Attorney and Why We All Need One
I have been working in this field for a while now and I realize that after doing this work every day for a number of years, I begin to speak a jargon that I think everyone understands. I have had the privilege to give presentations across the country. This weekend while I was speaking, a number of people asked questions about power of attorney that compelled me to focus this month’s article on their demystification.
First of all I believe that each person after the age of 18, the legal age of adulthood, should have a Power of Attorney document in place. I know that many of us have children that we would argue are not adults at the age of 18 but the law sets the standard that applies to all people unless an exception is established.
Legally as an adult we are able to enter into contracts and have rights of (to?) privacy. That precious right comes with a cost as well. The protection of those rights creates barriers when people are needed to help you when you are not able to act on your own behalf. If you became ill, there is no one who can negotiate your responsibilities in your stead without direct legal appointment.
Our firm recommends that you create a fiduciary relationship with someone to stand in your place as your “attorney in fact” for business and financial matters. The fiduciary relationship is significant, because there is an expressed responsibility which creates confidence and trust. The fiduciary duty requires the fiduciary to put aside his or her own interest and prioritize the interest of the person or organization for which they have accepted the position of trust. It’s a lofty responsibility and a heavy burden. The relationship must not be entered into lightly.
I instruct people that appointing a person to act on his or her behalf is comparable to giving someone a signed blank check. Unfortunately, courts have many people on the docket who did not honor the commitment and responsibility that they accepted.
As I sit with people to discuss the strategic appointment of the Power of Attorney, I see them struggle with identifying someone they trust. I see them struggle with the conflict of character that the closest family members have evidenced and I hear struggles of betrayal. I encourage them not to limit the consideration only to those who are next of kin or to the eldest child because of protocol.
I want people to realize the benefits of a Durable Power of Attorney who can serve as in as back up capacity for someone to complete financial actions in case the principal is in an accident or is suffering with an illness. The distress of mortgage, rent or a defaulted car loan due to lack of access can exacerbate ill health and create even more complications at an already challenging time. So often we can minimize distress by planning ahead. After the fact we may lose access to some options.The Durable Power of Attorney becomes effective upon the signing and is effective until it is expressly revoked or until the death of the principal. The effectiveness of this document persists even if the principal is no longer of sound mind as long as the principal was of sound mind when the document was created.
By: Aimee D. Griffin, Esq.
Article Featured in the Washington Informer – June 2016