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Transferring a Power of Attorney

There has never been a time in the history of the world where human beings are living as long as they are living now. This is due to the miracles of modern medicine, nutritious foods, and choosing to live a healthy lifestyle. In fact, recent studies have shown that if you and your spouse live to the age of 65 there is a 58% chance you will both live into your late 70s and a 47% chance that one of you will live to be older than 90. Because we are living so long, having a power of attorney as part of your basic estate planning is vitally important to ensure that you will have individuals capable of making decisions for you if you can no longer make them for yourself.

For over 70 years our team of Idaho estate planning attorneys in the Racine Law Office has assisted clients in creating customized estate plans which include Powers of Attorney. Our team of Idaho estate planning lawyers are talented, knowledgeable, and most importantly experienced in helping clients determine the specific needs that they need to plan for. consisting of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley, our estate planning attorneys have each received the highest client reviews and rankings possible on several leading legal rating services including AVVO, Justia, and Martindale-Hubbell.

We don't expect you to have a complete understanding of what a Power of Attorney is or how it can help you personally. The purpose of this article is to answer three basic questions about Powers of Attorney which should help you convince yourself that you should include a power of attorney as part of your basic estate plan.

What is a Power of Attorney?

The first and most important thing for you to understand is what a power of attorney is and how can help you. At its most basic a power of attorney is one individual giving specific powers and authorities to another individual to act in their stead. To put it more simply, if you have a power of attorney you have named an individual who can legally step into your shoes and do something for you that you would normally do for yourself.

An example of a power of attorney includes a limited power dealing with real estate. In this instance if a person was unavailable to sign closing documents when they were purchasing a house, they could give a limited power of attorney to another individual who would have the legal authority to sign their name to the documents so that closing could occur.

When it comes to estate planning, there are several different types and kinds of Powers of Attorney that exist and that can be utilized. Most often these Powers of Attorney are being used because a person anticipates that while they may physically be present, they may not mentally or physically be capable of doing certain things to care for themselves. What we are really talking about here is what occurs in a person's elderly years.

As we mentioned at the beginning, because people are living longer than ever before, there is a higher percentage of individuals who have some sort of incapacity or dementia later in their lives that limits their ability to take care of themselves. The most common example of this would be Alzheimer's disease. A person with Alzheimer's disease is going to continue to live because their body continues to function, however their mind no longer works the way that it should. When Alzheimer's disease strikes, a person begins to lose the ability to think rationally, and normally. As a result, they lose the ability to take care of their own finances, assets, and property, and to make the most basic life decisions that are necessary to continue to function safely.

Having a power of attorney is vitally important. The reason for this is that if you do not have a power of attorney and you suddenly become incapacitated, the laws in Idaho will require a court guardianship to occur. The law will not allow you to be vulnerable and unprotected as an adult. The problem with a court guardianship proceeding is that it is a court who decides who your guardian will be rather than you. Additionally, Court guardianship proceedings are expensive, and they open the door for your family to disagree about who should be appointed. This could lead to a costly family fight that could destroy relationships between family members.

What Powers of Attorney Should You Have in Your Estate Plan?

The next most important question to answer is what powers of attorney an individual should have as part of their estate plan. There really are two. The first is a durable power of attorney which is what I like to call the "global" power of attorney because it covers essentially everything dealing with a person's life except medical and health care. This leads us to the second power of attorney which is in fact a health care power of attorney.

The durable power of attorney allows an individual to name another person who will take care of their money, finances, bills, properties, assets, and allow them to make the most basic life decisions that a person usually makes for themselves every day without even thinking about it. This power of attorney really allows a someone else to step into your shoes and act as if they are you in almost every aspect of your life.

The health care power-of-attorney is much narrower. The purpose of this power of attorney is for you to name an individual who will do nothing more than make Healthcare decisions for you. This would include the doctors that you see, what procedures you may receive, what medicines you may or may not take, and ultimately if needed what Assisted Living location you would be placed in.

How is a Power of Attorney Transferred?

The final question that you need to understand, and the purpose of this article is to describe how a power of attorney is transferred. When a power of attorney is set up there is usually a primary person who is named who holds the power of attorney. Additionally, there usually are successor individuals named and listed who would become the holder of the power of attorney if the primary person that is chosen either cannot or will not do it. An example will help illustrate this.

Suppose you have a spouse and 2 adult children. In this instance you would most likely name your spouse as the primary power of attorney for you. You would then name your children as the successors, one at a time. If your spouse passed away before you, or if your spouse was physically unable or simply unwilling to be your power of attorney then your first named successor or child would become your power of attorney. If they couldn't or wouldn't serve, then your second named successor or child would serve. This is known as a successive transfer of the power of attorney.

When we create either a durable power of attorney or a health care power of attorney we automatically suggest to our clients that they have at least three people named. By doing this you will have some assurance that the individuals you have chosen will be named as your power of attorney. This allows you to avoid the court guardianship described above. Another way that a power of attorney can be transferred is that the person who creates the power of attorney signs a new document. The new document could name entirely different people who will hold the power of attorney and be successors. So long as the person has legal capacity, or the mental ability to understand what they are doing, they can change their power of attorney as often as they want.

The end result is that by having your Powers of Attorney as part of your basic estate plan, you will save money, avoid Court guardianship proceedings, and preserve family relationships. We have assisted numerous clients in completing their basic estate plan including their powers of attorney. We are confident that we can help you too!

Enlist an Idaho Estate Planning and Probate Attorney to Help You

Our experienced Estate Planning team of attorneys can help you and your family with your Idaho estate plan or with your probate needs. Whether you are seeking your own customized Estate Plan or need a Probate for a loved one who has passed, we are available to discuss your options and answer your questions at an initial free consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation with the Racine Olson team. You can also email us directly at racine@racinelaw.net. We will answer your questions and will help you solve your Idaho Estate Planning and Probate problems.

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