Why You Should Have a Durable Power of Attorney

July 12, 2016

As estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. attorneys, we strongly recommend that our clients have a properly drafted General Durable Power of AttorneyA Financial Power of Attorney that does not terminate if the person making the power of attorney becomes incapacitated. and a Power of Attorney for Health CareA document that authorizes a person, called an agent, to make health care decisions in the event that the person creating the document becomes incapacitated and can no longer make his or her health care decisions. A power of attorney for health care should also set-forth desires on the use or non-use of artificial equipment and feeding tubes in the event that the creator becomes incapacitated.. Along with a Last Will and TestamentSee Will. or TrustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries., these Power of AttorneySee Power of Attorney for Health Care, Financial Power of Attorney, and Durable Power of Attorney. documents can save time and thousands of dollars in court costs and attorney fees. They are a key element in a complete estate plan.

Within this article, we willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. limit our discussion to General Durable Power of AttorneyA Financial Power of Attorney that does not terminate if the person making the power of attorney becomes incapacitated. documents. A General Durable Power of AttorneyA Financial Power of Attorney that does not terminate if the person making the power of attorney becomes incapacitated. is often referred to as a POA, financial POA, or POA for finances. This type of POA can be drafted to be effective immediately or it can be drafted to become effective only if you are no longer able to handle your financial affairs which is called a “Springing General Durable Power of AttorneyA Financial Power of Attorney that does not terminate if the person making the power of attorney becomes incapacitated..”

What is a General Durable Power of Attorney?

A General Durable POA sets forth who can make financial decisions for you in the event that you are unable to do so for yourself or if you are having difficulty making financial decisions and need help.

A General Durable POA can be limited or very broad – depending upon your needs and circumstances. It can be used while you are still competent and need help, or it can be drafted as a “springing” POA that can only be utilized if you are unable to handle your financial affairs as certified by a doctor.

The Value of a General Durable Power of Attorney

A properly drafted POA can save you and your loved ones time and money and the uncertainty and difficulty of the guardianship process.

A General Durable POA can also save your loved ones the uncertainty of not knowing your wishes or who you want in charge of your financial affairs.

The financial POA can be a relatively simple document that can save your thousands of dollars and possibly avoid in-fighting amongst family member.

Misconceptions about General Durable Power of Attorneys

General Durable POA Cease to be Valid Upon Death

It is important to mention that financial POA documents such as General Durable Power of Attorneys are only valid during lifetime. These POA’s ceases to be valid upon death of the personal making the POA document. Therefore, upon death a POA can no longer to used to pay bills or sell real estate or sign tax returns and all of the other powers that a financial POA typically empowers your agent to handle. This is a very common misconception, so let us say again that your financial POA willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. no longer be valid upon your death.

A Financial POA Does Not Replace a Revocable Trust or Last Will and Testament

As it would no longer be valid upon death, a financial POA does not replace the need for a Revocable TrustA trust created during lifetime that can be terminated, amended, or modified by the person creating it. A Revocable Trust is often used in Wisconsin to avoid probate and provide for the orderly and proper distribution of assets upon death of its creator and to provide for management of assets and property if the creator of the trust becomes incapacitated. or Last Will and TestamentSee Will. (willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause.).

Although the financial POA is important, its place in our estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. tool-box covers financial matters during your lifetime. Consideration willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. need to be given to what is appropriate following death, and is typically set forth in your trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. or willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause.. Avoid the misconception that somehow your POA willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. be able to handle your financial matters and settle your affairs after death. Your POA willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. not have any such power.

What if You Don’t Have a General Durable Power of Attorney?

If you do not have a General Durable POA in place prior to becoming unable to handle your financial affairs, a guardianship proceeding willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. be necessary. A guardianship proceeding is a court process by which a court appoints a guardianA person or company appointed by a court, after a court hearing, to make decisions and represent a person who is incompetent. The guardian of the person makes person decisions for the incompetent person such as living arrangements and health care needs. The guardian of the estate makes financial decisions for the incompetent person. A properly drafted and executed Durable Power of Attorney along with a Power of Attorney for Health Care can normally avoid the need for a guardian, if these documents are created and signed prior to the individual becoming incompetent. of the estate to be in charge of your finances. This is a very costly and time-consuming procedure which requires court hearings, doctor reports, inventories, bonds and other costs and more. It normally involves at least two attorneys, both of which are typically paid by the person in need of the guardianship.

Having a General Durable POA and a Power of Attorney for Health CareA document that authorizes a person, called an agent, to make health care decisions in the event that the person creating the document becomes incapacitated and can no longer make his or her health care decisions. A power of attorney for health care should also set-forth desires on the use or non-use of artificial equipment and feeding tubes in the event that the creator becomes incapacitated. normally eliminate the costly and cumbersome guardianship process.

Get in Touch

To discuss your estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. wishes, including a financial POA, we welcome you to contact our experienced estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. lawyers on 262-658-2181 or info@wokwicz.com.