Phelps  Law Group Durable Power of Attorney
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Durable Powers of Attorney for Assets and Health Care


Durable Powers of Attorney for Assets and Health Care

A Power of Attorney (PA) is a document where one person, the principal, appoints another person or persons as his agent (formerly referred to as an "attorney-in-fact"). The document confers authority upon the agent to perform certain acts on behalf of the principal. By statute, all fifty states and the District of Columbia permit a principal to create a power of attorney that survives the principal's incapacity. Otherwise, the power of attorney terminates on the principal's incapacity, which is when most people would want the agent to have authority to act on their behalf.

In California PAs have been authorized by statue since 1979. In 1994 the provisions regarding PAs, which were scattered among various statutes, were consolidated.

In July, 2000, the first major revisions to the consolidated statutes took effect. These new provisions are found in the Probate Code which reinforces the estate planning nature of PAs.

PAs are very important for planning purposes. There is a significant statistical likelihood that a person will require assistance with the management of her affairs due to her incapacity. According to the Bureau of Census, there is a 58% probability that a 25-year-old person will become disabled for three months or longer at some time during his or her life. Thus, even the very young who have assets and concerns about management of their financial affairs should consider this important planning tool. The issues one should plan for vary from person to person and thus must be tailored to the client's specific needs.

One important decision that the principal must make is the choice of his/her agent(s). We often spend time counseling our clients about the selection of their agent(s). Factors to consider include:

  • is the agent trustworthy,

  • is the agent willing to serve

  • where does the agent live

  • does the agent have financial expertise

  • are there conflicts of interest with the principal

  • if a spouse is chosen as the agent, is there a risk of divorce

  • if a principal's child is to serve as an agent, is there a risk of family friction

  • who will be a successor agent if the first agent is unable or unwilling to serve.

A PA can also be a "license to steal", because it can give the agent complete access to all of the principal's assets. Thus, it is extremely important to carefully choose the agent and decide whether the PA is effective immediately or upon the occurrence of an event in the future.

Why not use a form? You can purchase a short form PA for less that $10.00 or even find one over the internet for less than$15.00 and you don't need a lawyer to draft it. However, as one of the most powerful and flexible legal instruments in a person's estate plan a PA should not be a "one size fits all form". We tailor the PA we prepare to the needs of each of our clients.

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  Tel: 626-795-8844
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