As we age, our needs change. Sometimes, they change slowly and progress over time. Other times, our aging loved ones needs advance quickly and they need more assistance right away. In either case, having a comprehensive estate plan in place that includes important legal tools for protecting your aging loved one and his or her best interests can be critical in avoiding legal battles, lapses in the care needed, and more. Here, we will discuss the importance of having a durable power of attorney in place for aging parents. An invaluable estate planning tool, a durable power of attorney should be put in place for your aging parents and loved ones as soon as possible. Let’s talk more about why this is the case.
The Importance of Having a Durable Power of Attorney in Place for Aging Parents
A durable power of attorney is a legal document executed by the principal granting authority to a designated agent to conduct certain affairs on the principal’s behalf. When a power of attorney is “durable,” it means that this power survives incapacitation of the principal. In fact, the durable power of attorney remains in effect for the lifetime of the principal. Without the durability feature, the power granted under a power of attorney goes away in the event that the principal becomes incapacitated. Because a durable power of attorney survives incapacitation, it can be a very useful tool for your aging parents to help ensure their personal, financial, and legal affairs, are properly managed when they are no longer able to manage them on their own.
A durable power of attorney can relate to medical decision-making. It can cover financial decision-making. It can be broadly crafted or narrowly tailored. A durable power of attorney, however, can only be enacted by a mentally competent principal. This is one of the reasons why it is so important to put a durable power of attorney in place for your aging parents sooner rather than later. Should they become unable to manage their affairs and not have one in place, a conservatorship will need to be established instead.
A conservatorship is where a judge will appoint a conservator, either a person or organization, to care for the conservatee who is unable to care for themselves or manage their own affairs. In some states, the term “guardianship” is used for a “conservatorship” wherein an incapacitated adult has this legal relationship established. When a state refers to this arrangement as a “guardianship,” conservatorship usually refers to an arrangement where one person is appointed to manage the finances of the other. A Conservatorship, however, should be avoided if possible and can be effectively avoided in most cases through having a durable power of attorney in place. Conservatorships can be unduly restrictive as well as costly, time-consuming, and difficult to establish. A durable power of attorney, on the other hand, is easy to establish when the principal has mental capacity and does not unduly restrict the principal’s ability to remain relatively independent while empowering another to manage finances and mores should the need arise.
Estate Planning Attorneys
Do not delay in putting a strong estate plan in place, including a durable power of attorney appointing an agent you trust. OC Wills & Trusts, we can help you with this. Contact us today.