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Doing Your Power of Attorney Right

For over 70 years our Idaho estate planning team of attorneys has assisted clients in creating and customizing estate plans to help them and their loved ones. A basic part of an estate plan includes a power of attorney which can provide specific protections for you individually while you are alive. Having a power of attorney allows you to avoid the need of having a guardianship proceeding occur in court which is expensive and time-consuming and can also lead to family disagreements and disputes.

At the Racine Law office we have a team of Idaho estate planning lawyers who work together to ensure that each of the needs of our clients are met. Our team is made up of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley who have each received exceptional reviews from other attorneys, judges, and more importantly clients. Our clients recognize the skill and experience are estate planning team has in helping them plan for their own unique needs.

Having a power of attorney is an important part of every estate plan. Here are three specific things that you should know about how to do your power of attorney correctly.

1. Defining When It Becomes Effective

The first, and perhaps most important thing for every individual to consider when it comes to having a power of attorney is specifically defining when it becomes effective. And individual has the ability to choose to make a power of attorney immediately effective once it’s signed, or making it effective when some specific event occurs. When the effectiveness of a power of attorney is connected to a specific event it is called a springing power of attorney.

An example of a springing power of attorney includes requiring one or more physicians to certify in writing that the individual is incapacitated, or incapable of caring for themselves, their finances, and or their personal health care. By having some limiting language in a power of attorney the person controls when and how the power of attorney actually becomes effective and can be used.

In helping our clients we find in many instances it is best to use different methods for when a power of attorney becomes effective. For example, spouses will often make the power of attorney immediately effective for their spouse. This is usually because as a spouse you will know what it is that the other wants or needs. Additionally, spouses are usually already doing many of the same things for each other already. Alternatively, most individuals will not give a power of attorney immediately to their children or to others. Rather they will require that the power of attorney spring into effect after a physician declares that they are in fact incapacitated. The reason for this is that it allows the individual to maintain independence as long as possible.

When the power of attorney is silent on when it becomes effective or provides vague instructions, it may lead to a disagreement. This then may require a determination by a court about when the power of attorney is effective, which is the very thing a power of attorney is designed to avoid in the first place. For this reason it is almost always best for there to be a specific statement in the power of attorney about when it becomes effective.

2. Defining Exactly What Powers are Given

The second thing to consider when it comes to a power of attorney is defining exactly what powers are given. In Idaho, there are two specific types of powers of attorney. The first, which is very specific, is a power of attorney for healthcare. This document is tied directly to and is often included in the living will document. The healthcare power of attorney provides specific instructions on the powers given allowing another individual to make healthcare decisions for you if you cannot make them for yourself.

The second type of power of attorney is what is commonly known as a durable power of attorney. This document allows you to name some other individual who will do everything else for you other than health care. This will include dealing with your finances and bank accounts, receiving monies from other sources including Social Security, paying bills and dealing with creditors, and caring for your property and asset. This power of attorney is much more global and provides broad powers to the individual that receives it.

When assisting our clients we provide specific instructions in each power of attorney about the powers that are given. In this way, our clients have a clear understanding of what the person they name as their power of attorney can do for them, and what they cannot do.  

3. Having Access to the Original Power of Attorney

The third and final thing that you should know about using a power of attorney is that you must give to the individual you are appointing the original Power of Attorney document. In the past this wasn’t such a big deal but things have changed. In many instances now, banks, financial institutions, and Healthcare Providers, require the original Power of Attorney document to be presented to them physically before they will acknowledge it. Often they will then make a scanned copy for their own records.

This has become more and more prevalent now due to banks, financial institutions, and health care providers wanting to ensure that they can avoid liability. By reviewing the original Power of Attorney document these institutions and the individuals running them can acknowledge and declare that they completed their due diligence in determining whether the power of attorney was valid before they acknowledged it.

Enlist an Idaho Estate Planning Attorney to Help You

Our team of Idaho lawyers can help you with any of your estate planning needs if your spouse has passed away. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation. You can also email us directly at racine@racinelaw.net. We will answer your questions and help you solve your Idaho Estate Planning problems.

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