A durable power of attorney (POA) has significant benefits for anyone who wants to protect themselves and their property and family in case of incapacity. Incapacity is a possibility at any age, both because of illness or because of injury. If you have not made plans for incapacity, which often include creating a durable power of attorney, your family could face significant complications if something happens that leaves you unable to act on your own accord.
The Law Offices of James A. Miller can provide assistance in making the plans you need to provide protection in case of incapacity. Incapacity means a physical or a mental condition of some type has resulted in you being unable to either form your own decisions or to communicate your preferences. If you want to be prepared in case this ever occurs, contact our Worcester incapacity planning lawyers today. We can help you to determine if you need a durable power of attorney and can explain the benefits of a POA in an incapacity plan.
What is a Durable Power of Attorney?
A power of attorney gives you the chance to name an attorney in fact or an agent who you trust to act as your proxy. Your agent or attorney in fact who you select is going to be able to act on your behalf, doing things like managing your investments and binding you to contracts and taking other steps for you. Your agent will have a fiduciary obligation to act in your best interests and will be able to protect you and your property if incapacity affects your ability to act on your own accord.
Powers of attorney are used in many different circumstances, including when you need to sign paperwork for a particular transaction but can’t be present and give your agent authority to sign for you. In the case of incapacity planning, however, the creation of a durable general power of attorney is usually needed. A durable power of attorney stays in effect upon incapacity, whereas a POA that isn’t durable ends at incapacity.
Massachusetts explains a durable power of attorney in Code Section 5-501. The written document that you use to create your POA has to specify: “This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time” or must use similar words illustrating your intention for the POA to stay effective if you become incapacitated.
Benefits of a Durable Power of Attorney
Working with an attorney to create a durable power of attorney as part of your incapacity plan is a smart option because of the many benefits of a durable POA. Benefits include:
- Asset protection: Without a designated agent to take over asset management, the value of investments and property could be reduced as a result of a period of uncertainty during the time it takes to determine who should be in charge. If you haven’t selected your agent yourself and someone is appointed to manage assets, that person may also not have the knowledge or ability to act as you would wish and to protect the asset value.
- Protection of your family: Your family will need to take steps to get control over your assets and your decision-making if you have not created a durable power of attorney. This generally involves the initiation of guardianship proceedings in court. During guardianship proceedings, the court determines first whether incapacity necessitates appointing a guardian and then appoints someone. Your family faces the cost and stress of the court proceedings, and the desired person may not be selected by the court as guardian.
It is up to you to determine if creating a power of attorney is the approach you want to take. There are different tools in incapacity planning that could be used, including advanced directives to express healthcare wishes in advance, as well as living trusts for timely management of assets. The Law Offices of James A. Miller can provide assistance in determining which approach is a good approach for you.
Getting Legal Help
A Massachusetts incapacity planning lawyer offers help with determining how best to protect yourself, your wealth, and your family. You can join us for a free seminar to learn more about how powers of attorney and other legal tools work. You can also give us a call at 866-370-3888 or contact us online to discover more about the ways in which we can help you.
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