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Jewish World Review July 8, 2003 / 8 Tamuz, 5763

Jan L. Warner & Jan Collins

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Consumer Reports

The 'magic' language for a power of attorney agreement | Q: My wife and I have read quite a bit about the need for powers of attorney, but we're confused about whether we need a general power of attorney or a durable power of attorney. Also, we want each of our three children appointed to act for us if we became incapacitated, but not before. Is this possible?

A: First of all, a primer on powers of attorney: When you sign a power of attorney, you appoint someone you trust to act for you under specific circumstances, and to engage in acts that are authorized by the terms of the document. This creates an agency relationship that is governed by the laws of your state. Based on the document's language, you can make the grant of authority to your agent (a child, for example) either broad or limited. If you don't voluntarily create this agency relationship and become incapacitated, a probate or surrogate court will appoint a person to act for you — one whom you may not have chosen. In this case, the court may well limit the authority of the guardian or conservator, reducing his or her ability to plan for you. That's why it's preferable to sign a well-drafted durable power of attorney instead of taking your chances that a court will carry out your wishes.

All powers of attorney end when the person who signs it died. However, if your power of attorney is not "durable," it will terminate immediately upon your incapacity — just when you need it most. That's why the "magic language" creating durability is so important. Generally, this language is as simple as, "I intend that this power of attorney not be affected by, and will survive, any future incapacity." With those words, your "general" power of attorney becomes a "durable" power of attorney.

By making sure your document is drafted properly, you can control when the power of attorney takes effect. You can make it effective immediately or effective when you become physically or mentally incapacitated. If effective upon incapacity, it is called a "springing durable power of attorney." In this event, you should define the exact events that make you incapacitated, and who will make that decision for you. While "springing" documents may give you peace of mind, third parties who rely on these documents are generally more comfortable with immediate powers of attorney.

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As for choosing someone to make your decisions (should you be unable to do so), we believe it's a mistake giving three people the job of one. Any time you have government by committee, you have gridlock. And gridlock means that someone will go to the courts to make your decisions.

We believe it's better to appoint one person as agent, and require input from the others should gifts or other self-serving acts be authorized by the document. For example, if you wish your agent to be able to make gifts during your incapacity, you can limit the gifts in amount, require that the majority of your then-living children agree to the gift in writing, and require that if a gift is made to one child, the other children receive an equal and simultaneous gift.

Since powers of attorney are much like shoes, it's important that your document be drafted to fit your specifications and needs — not a "one-size-fits-all" form that, in actuality, fits no one and leaves you in the lurch when you need it the most.

It's important to record your document with your county's public records' office and to give copies — while you're still in good shape — to those with whom you do business. It's not a good idea to spring the power of attorney on a bank after you become incapacitated.

Lastly, if you revoke or modify your power of attorney, make sure to record the revocation or modification and also give copies to all those whom you provided your power of attorney in the first place. Do yourself a favor and hire a knowledgeable lawyer to prepare your documents.

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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.


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© 2003, Jan Warner