Practical Estate Planning Tips Series 3 of 10

Tip 3:  Regarding Power of Attorney(s) - If you trust your agent under your Power of Attorney, then make their power EFFECTIVE IMMEDIATELY. (side note - if you don't trust them then don't have them as your agent)

When it comes to being able to use a Power of Attorney there are basically 2 types: 1) effective immediately or 2) a springing power that springs into effect at a certain time, such as incapacity.

Believe it or not, many Power of Attorneys are drafted having a "springing" power. This means that they spring into effect when a person becomes incapacitated.  Usually the problem here is that incapacity has to be proven by one, or many times, by two physicians before the agents authority becomes effective.  This can sometime be difficult to get. 

Also, many time you may want your agent to go do something for you even though you have capacity.  Perhaps you can't leave the house or it is just something you don't want to deal with at that time.  With a springing power they could not go and do it.

Therefore, in my opinion, your Power of Attorney for Finances and your Advanced Health Care Directive, should state that the powers of the agent are EFFECTIVE IMMEDIATELY. (it will actually say that - effective immediately)


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