When you plan your estate, you should cover all of your bases. Of course you want to facilitate the transfer of your monetary assets to your loved ones after you pass away. At the same time, you should also prepare for the period of time that will precede your death. During this interim, incapacity is very common. You account for this possibility through the execution of a durable power of attorney.
Durable powers of attorney do remain in effect if the grantor becomes incapacitated. A power of attorney that was not specifically designated as durable would not remain effective upon the incapacitation of the grantor.
A power of attorney is comprised of a grantor or principal, and an agent or attorney-in-fact. The grantor is the person who is executing the power of attorney, and the agent or attorney-in-fact is the representative who will be empowered to act on behalf of the grantor.
Qualifications of Agent
Because of the fact that an agent is alternately referred to as an attorney-in-fact, you may wonder if you have to be a lawyer to act as an agent. The answer is no, you do not have to be a practicing attorney to serve as the agent under a power of attorney. To be an agent, you must be an adult who is of sound mind. You must also be willing to act as the agent; you can’t be legally compelled to serve as an agent under a power of attorney.
Though any competent adult can act as an agent, you should look for certain attributes when you are choosing an agent to act on your behalf in the event of your incapacitation.
Your agent is going to be making important decisions on your behalf. When you create a durable financial power of attorney, the agent will handle your financial affairs. Because of this, you should select someone who has a good bit of business acumen.
In addition to the competency factor, there are practical considerations as well. If your brother would be a great attorney-in-fact, but he lives 3000 miles from you, this distance may present a problem if ongoing decisions must be made on your behalf. You should certainly consider the proximity of the agent that you choose.
Age is another relevant factor. When you create a durable power of attorney, the agent may not be required to act for many years. You should evaluate the likelihood of the agent being alive and well when action is required.
Getting Legal Help with Creating a Power of Attorney in Davenport
If you would like to learn more about incapacity planning and creating a power of attorney in Davenport, contact our firm to schedule a free consultation. You can request an appointment electronically through this website.
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Ryan M. DenmanandDennis D. Duffy
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