the many benefits of having a durable power of attorney

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Understand the Role of a Durable Power of Attorney and Its Importance in the Event of Your Incapacitation THE MANY BENEFITS OF STEPHEN A. UNSWORTH VERMONT ESTATE PLANNING ATTORNEY HAVING A DURABLE POWER OF ATTORNEY

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Understand the role of a durable power of attorney and its importance in the event of your incapacitate.

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Page 1: The Many Benefits of Having a Durable Power of Attorney

Understand the Role of a Durable Power of Attorney and Its Importance

in the Event of Your Incapacitation

THE MANY BENEFITS OF

STEPHEN A. UNSWORTH VERMONT ESTATE PLANNING ATTORNEY

HAVING A DURABLE

POWER OF ATTORNEY

Page 2: The Many Benefits of Having a Durable Power of Attorney

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We receive a lot of questions every week from seniors and their caregivers.

While the questions always vary, there are a few common denominators in

many of those questions. This week, we

explore a topic that’s probably the area

that causes some confusion. That topic, of

course, is the role of a durable power of

attorney.

Every state defines its own laws on most

matters, including estate planning. There

are a lot of moving parts but it’s important

to understand that they all work (or should work) like a well-oiled machine

for the citizens in those states. That doesn’t mean our lawmakers make it

easy for us to grasp their mindset as the laws are being made. The

questions and answers below should serve as a foundation, but you should

speak to your elder care lawyer or estate planning team for more specific

information.

WHAT IS A DURABLE POWER OF ATTORNEY?

A durable power of attorney allows you to name an agent whom you trust

to make important decisions if you are unable to make those decisions

yourself. It could be that you’ve been injured, are preparing for a lengthy

surgery or you’re in the early stages of dementia or Alzheimer’s.

Page 3: The Many Benefits of Having a Durable Power of Attorney

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WHAT HAPPENS IF I HAVE NO DURABLE POWER OF

ATTORNEY?

Again, it varies from state to state; however, if there is no durable power

of attorney, in most states, a judge decides

in guardianship or conservatorship

proceedings who will handle your affairs

and it may not be the person you would

have chosen. It’s a far more affordable

route, too. Remember, too, that when a

power of attorney is "durable," it simply

means it remains in effect even after you

become incapacitated or disabled. Your

Vermont estate planning attorney will ensure it’s durable by including a

statement similar to, “This power of attorney shall not be affected by the

subsequent disability or incapacity of the principal.”

Sometimes, a standard power of attorney is confused with a durable power

of attorney. What many don’t realize is that a standard power of attorney

does nothing if you become incapacitated or incompetent.

WHY WOULD I WANT A DURABLE POWER OF ATTORNEY?

The benefits of a durable power of attorney are many. The primary

motivation is to ensure you maintain the decision making power. Most

If the time ever comes

that you are unable to

make decisions, someone

will have to. It’s up to you

to decide who makes the

initial decision of who

that person will be.

Page 4: The Many Benefits of Having a Durable Power of Attorney

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people don’t want a judge or court to decide who fills that role and a

conservatorship proceeding can be costly. Remember, this isn’t an option:

if the time ever comes that you are unable to make decisions, someone will

have to. It’s up to you to decide who makes the initial decision of who that

person will be.

WHAT’S EXPECTED FROM MY NAMED AGENT?

The role of the power of attorney includes management of all of the

decisions you’ve outlined in the durable power of attorney. It might be the

management of your finances, including your retirement accounts and

even property you own. They may also enter into contracts unless you

state otherwise.

That’s the beauty of a durable power of attorney – it can be as broad or

narrow as you wish.

I DON’T NEED A DURABLE POWER OF ATTORNEY. MY

WIFE CAN HANDLE EVERYTHING.

Your spouse may not have the kind of decision making powers you think.

While your husband or wife may still carry out the daily business associated

with running a household, paying bills, buying groceries, etc., should you

become mentally incapacitated, he or she will not able to alter insurance

policies or retirement accounts.

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Don’t make the mistake of believing joint ownership protects you. In

almost all cases, it doesn’t unfold that way. You should speak your estate

planning lawyer to ensure you and your spouse understand those

limitations. Your named durable power of attorney is the one person who

can make other decisions.

BUT IT SEEMS LIKE I’M TAKING A BIG RISK WITH A

DURABLE POWER OF ATTORNEY.

If you’re thinking a durable power of attorney will have a lot of control,

you’re right. And there is a risk associated with naming a durable power of

attorney even as you’re still able to

make your own decisions. This is

why it’s important to choose wisely

and have the documents quite

specific in the authority you’re

giving (and not giving) the power

of attorney.

CAN I MAKE A DURABLE POWER OF ATTORNEY THAT

BECOMES EFFECTIVE ONLY IF I BECOME DISABLED?

You can memorialize the limitations with statements that your lawyer will

include. It might include, “This power of attorney shall become effective

upon my disability.” He will be specific in those limitations and the agent

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you’ve chosen will be able to use the durable power of attorney to secure

necessary paperwork – bank statements, for instance. You can also

stipulate that the document goes into effect only after a certain threshold

is met, such as your inability to speak, during a surgery or any other

specific timeframe. That’s the best part – you choose the parameters.

CAN I NAME MORE THAN ONE AGENT?

You may name as many agents as you wish. Be sure to specify whether or

not multiple agents must act jointly or work independently. There do exist

potential problems with more than one agent. For instance, if you name

two agents to act jointly, they may disagree on a decision. Your estate

planning attorney may recommend to name one agent with an alternate

“just in case”. These quagmires only highlight the importance of choosing

carefully.

CAN I CHANGE MY MIND?

You maintain the right to alter or even revoke a durable power of attorney

provided you have the capacity to do so. Your lawyer will be able to draft

the revocation and ensure it is properly filed.

Don’t underestimate the importance of meeting with your lawyer to go

over the specifics associated with your unique needs. Once that’s covered,

the peace of mind you gain is priceless.

Page 7: The Many Benefits of Having a Durable Power of Attorney

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About the Author

Stephen A. Unsworth has over 30 years of experience in estate planning and business

law. Stephen directs the Legacy Wealth Planning group

and devotes his practice primarily to estate planning,

elder law, asset protection, and business law. His mission

is to provide quality estate planning resources, including

assistance with Living Trusts, Wills (simple & complex),

Probate, Trust Administration, Powers of Attorney, Trusts,

Medicaid and Special Needs Planning, and Family Limited

Partnerships.

Stephen is admitted to practice law in both Vermont and

Maine. He is a member of the Vermont Bar Association, the Maine Bar Association, the

Chittenden County Bar Association, the American Academy of Estate Planning Attorneys,

the National Academy of Elder Law Attorneys, and the Vermont Bar Association’s Elder

Law and Probate & Trust Sections.

He previously served as a member of the Board of Governors of the AAEPA, President of

the Chittenden County Bar Association, and Chairman of the Vermont Bar Association

Continuing Education Committee for which he was awarded a certificate for being an

outstanding chairperson. Stephen was also awarded a certificate of appreciation from a

Vermont Administrative Judge for his work as an Acting Judge in Small Claims Court. He

regularly presents at continuing legal education seminars for attorneys and paralegals in

Vermont and has taught business law courses at both the University of Vermont and

Champlain College.

Stephen has been named a “Super Lawyer” by the New England Super Lawyers

Magazine each year since its creation in 2007. This distinction- based on peer

nomination, extensive polling, and independent research- ranks him in the top 5% of

lawyers in New England.

Unsworth Law, PLC

www.unsworthlaw.net

Railroad Avenue Partners, Professional Building

26 Railroad Ave.

Essex Junction, VT 05452

Phone: (802) 879-7133