Power of Attorney

August 11, 2010

What is a General Durable Power of Attorney?
A General Durable Power of Attorney is a written document in which you authorize someone to act on your behalf. A General Power of Attorney allows the individual to make financial decisions on your behalf within the parameters of the powers enumerated in the power of attorney. A durable power of attorney remains effective after the onset of a disability.

What is a Springing Power of Attorney?
A Springing Power of Attorney is a power of attorney that takes effect only upon your disability.

Can someone with Alzheimer’s disease sign a power of attorney?
The answer depends on the stage of the disease. A diagnosis of Alzheimer’s disease does not by itself mean that the person lacks the capacity to sign a particular legal document. An attorney may wish to obtain a medical statement from the person’s physician concerning the mental capacity of the person.

If a child has his or her parent’s power of attorney, how does he or she sign on behalf of that parent?If someone has created a will naming an executor, is a power of attorney also necessary?
Yes, a power of attorney is used for managing ones affairs before death. An executor of a will does not have the power to act until the death of the individual who made the will.

If someone is incapacitated, can he or she still sign a power of attorney?
A person who lacks the capacity to understand the nature and consequences of a power of attorney may not sign a power of attorney.

If a person can’t sign a power of attorney because of incapacity, what happens?
Unfortunately, those who do not sign a power of attorney while they have capacity have lost control as to who will take care of their affairs if they are unable to do so themselves. Unless other management tools are already in place (such as a trust, joint accounts, or representative payee for Social Security checks) and sufficient to manage all of the persons estate, an individual seeking to manage the affairs of an incapacitated person will need to retain an attorney to begin a court proceeding for guardianship. The duties of a guardian include caring for the ward (the person on whose behalf decisions are being made) and maintaining adequate financial records.


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