An Overland Park durable power of attorney is a useful tool that allows someone else to take control of and manage your affairs in case you become incapacitated. It must be specifically designated as “durable” so that it will remain in effect once you become incapacitated. Some clients assume that the agent given the control through an Overland Park durable power of attorney will automatically become their executor upon their death. That is not the case. Here is what you need to know.
Agents and Executors Have Different Responsibilities
With an Overland Park durable power of attorney, an agent or “attorney-in-fact” is designated to have the power to act on behalf of the principal (the person who executes the durable power of attorney). On the other hand, the executor is the person who is named in the last will and testament and given authority only after the death of the testator (the person who executes the will).
To explain it another way, an agent operating under a durable power of attorney only has the power to act on the principal’s behalf while the principal is still living. The power of attorney actually terminates upon the death of the principal. Conversely, the executor of a will only gains his or her power when the testator passes away.
Differences Between a Power of Attorney and a Will
It is important to understand that an Overland Park durable power of attorney may be flexible, but it does not identify who will administer your estate upon your death. The last will and testament is the estate planning document that is used to do that – to identify your executor.
The General Purpose of a Power of Attorney
A general power of attorney is a legal document that essentially appoints someone to be your agent while providing that agent with broad authority over your affairs. Usually, a power of attorney is created to allow management of financial matters or health care decisions.
How Does an Overland Park Durable Power of Attorney Work?
If the power of attorney is limited in nature, then the agent will only have the authority established by the terms of the power of attorney document. With a power of attorney, for example, you can give your business partner authority over certain business assets. You can give an agent management power over your rental property if you have to go out of the country for an extended period of time. There are many options to fit your needs.
You Select the Agent for Your Durable Power of Attorney
Unlike with a guardianship, establishing a durable power of attorney allows you to choose your own agent to handle your personal matters for you if the need arises. If you do not choose that person ahead of time and later become incapacitated, then a judge will be required to make that decision for you. For many people, the chance to make that decision for themselves is crucial.
A Durable Power of Attorney Allows You to Plan Ahead
One of the benefits of having a durable power of attorney in place is that you can have a chance to discuss your expectations with your family while you still have the opportunity. That chance can be invaluable. When you draft the terms of your durable power of attorney you can take into consideration how your needs may be different as you get older, such as the potential need for long-term care.
An Overland Park Durable Power of Attorney Can Eliminate Family Disputes
Another great benefit of establishing a durable power of attorney is the possibility of avoiding confusion and uncertainty as to how you want your personal affairs to be managed. A properly drafted durable power of attorney can help you avoid the likely family disputes regarding your financial and healthcare matters.
When a loved one has become incapacitated, the family should not be wasting time arguing over medical or financial decisions. Instead, someone should already be chosen to step up and take over when necessary. Planning ahead allows you and your family to avoid most of the common disputes.
Download our free estate planning worksheet today! If you have questions about a durable power of attorney, or any other estate planning matters, contact Gaughan & Connealy for a consultation either online or by calling us at (913) 262-2000.