by Thomas D. Begley, Jr., Esquire, CELA
The Financial Power of Attorney is also known as a General Durable Power of Attorney. The principal designates an individual to serve as an Agent to transact financial decisions on the individual’s behalf. The document should be state specific, because laws in different states vary. It should also be detailed as to exactly what powers are included. Some states have statutory forms of powers of attorney, but these are generally not as effective as individually-customized documents.
If a Power of Attorney is not in place, a guardianship may be required in order to make medical and financial decisions. While the procedure for appointment of a Guardian varies somewhat from state-to-state, generally, two physicians must certify that the individual lacks capacity to conduct their affairs. Physicians perform an examination, and a commonly-used tool by physicians is a Mini Multi-State Examination. Proceedings must be filed in court. Notice must be given to all interested parties. There are frequently challenges as to whether or not the individual has capacity and also disagreements as to who should be appointed guardian. A contested guardianship can be expensive and execution of a power of attorney is always preferable.
Typical powers conferred include:
- Power to Sell, Mortgage, Lease, Gift or Transfer Real Estate
- Disposal of Proceeds of Sale
- Use Credit Cards
- Power to Invest
- Securities and Brokerage Accounts
- Power to Exercise Rights in Securities
- Power to Execute Further Powers of Attorney
- Power to Exercise Rights in Governmental Securities
- Power to Demand and Receive
- Compromises and Discharges
- Exercise Elective Share Rights/Right of Dissent
- Power With Respect to Employment Benefits
- Power With Respect to Banks
- Power With Respect to Legal and Other Actions
- Power to Borrow Money
- Powers With Respect to Trusts
- Power to Exercise or to Renounce and Resign From Fiduciary Positions
- Power to Disclaim, Renounce, Release or Abandon Property Interests
- Power With Respect to Insurance
- Power With Respect to Taxes
- Power to Make Loans
- Power to Make Gifts
- Apply for Public Benefits
- Managing Agency Accounts
- Employ Consultants
- Power to Operate Business
- Partnership
- Power to Provide Support
- Pets
- Deal With Environmental Hazards
- Closely Held Business Interests
- Providing for Principal’s Incapacitated Children
- 529 Plans
- Digital Assets
- Creation of Interest in Principal’s Property
- Power with Respect to Annuities
- ABLE Accounts
