Purpose, Use, Comparisons

Durable powers of attorney drafted for the management of property or assets are an extremely powerful and important legal document that should be considered as part of any estate plan. It should be reserved, therefore, for situations where the principal (you) can safely and properly transfer to a trusted agent (the attorney-in-fact) the desired authority. By executing a durable power of attorney, you authorize another person to act for you. However, your agent has no duty to act unless you and your agent agree otherwise in writing, regardless of whether you have become incapacitated or are otherwise unable to act.

What Happens Without a Durable Power of Attorney?

If you are incapacitated, without a valid durable powers of attorney, other steps – often including a court-supervised conservatorship – will be required to handle your finances. It is best to avoid a public and costly conservatorship if possible.

Giving someone your durable power of attorney is like giving them a second set of your keys. You still have your own keys and may use them, but now they have a set too. In contrast, if you are subjected to a conservatorship, the court takes away your keys, prohibits you from using them, and gives your keys to someone else.

Scope of Powers

None of the permissive provisions in a form durable power of attorney are required by law. You may delete or limit them as you desire. On the other hand, if you want to grant your agent any of the following estate planning powers, they must be specifically authorized in the document:

Through durable powers of attorney, you are granting a wide scope of powers to your agent. Such extensive and general powers give your agent authority to manage, dispose of, sell, and convey your real and personal property; to use your property as security if your agent borrows money on your behalf; to transact any and all business for you, such as sign checks and pay bills; make and change investments (including insurance); operate your business; bring and defend against claims and litigation; apply for and collect benefits from social security, Medicare, Medicaid, or other governmental programs, or civil or military service and retirement plans; handle tax matters, etc. However, it is just such a broad set of authorities that presents the greatest risks of abuse.

When the Powers Become Effective and Duration

Why McLaughlin Legal?

McLaughlin Legal is a boutique San Diego law firm, and we strive to provide each client with good judgment, personalized legal services, and great results.  McLaughlin Legal prides itself on our three core values:

1. Concentrated Practice Areas2. Personalized Service3. Committed to Clients

 

 

McLaughlin Legal’s structure, plus our experience with tax litigation and tax controversies, allows us to represent clients who have tax problems (like an IRS audit or California tax issue) and also advise on other tax law issues with a perspective not found elsewhere.  We strive to provide the highest quality services to anyone who entrusts us with their case.  

McLaughlin Legal wants to be sure that any estate planning matter, including a financial durable power of attorney, will fit your needs and situation. Together we can help you and your family achieve all of your estate planning goals.

Interested in Learning More? Interested in Learning More?
If you are interested in learning more about estate planning, including incorporating powers of attorney, please feel free to contact McLaughlin Legal today for a free consultation.