4 Common Myths About Powers of Attorne

March 12, 2018 • Posted by | Leave a Comment

Powers of attorney are extremely useful documents in the event of mental incapacity. These documents are also useful in less dire situations, such as when the principal is out of the country or simply unable to sign an urgent document. Nonetheless, rumors concerning potential pitfalls with powers of attorney continue to swirl, including the ever-present concern that an agent can make off with the principal’s money. The following helps to dispel some of the more common myths associated with both healthcare powers of attorney and financial powers of attorney. As always, be sure to contact an experienced attorney with any questions you may have about the implications of executing a power of attorney in your own estate plan.

 

            Myth #4: I don’t need to appoint my spouse as my agent – we’re married!

 

Contrary to popular belief, the law does not create a natural power of attorney relationship between spouses. Of course, any assets titled jointly may be handled or transacted by either spouse as needed. However, if an asset is titled solely in the name of one spouse or the other, it will generally require authorization via a power of attorney in order for the other spouse to gain access to the asset or account.

 

            Myth #3: I should name all my children as my agent to avoid conflict

 

Actually, the opposite may be true. Oftentimes, the notion of selecting all the adult children as agent may seem like the fairest way to divvy up the responsibility. However, in the event the agents do not agree on a course of action, this could backfire and create even more friction. Options to avoid this including naming just one adult child as an agent – or specifying that agents may act concurrently but independent of one another.

 

            Myth #2: A living will requires me to select ‘DNR’ – and I don’t want that!

 

A living will allows the drafter the opportunity to elect certain options when facing an end-of-life situation. The document does not trigger until the point at which a doctor has determined that you are likely to succumb to the illness or injury in force. As well, a ‘do not resuscitate’ directive is not the only option available, and you may elect that you would like medical interventions to prolong your life indefinitely.

 

            Myth #1: If I execute a power of attorney, my agent could steal all my money!

 

This is not only a myth, it is also a crime. A power of attorney does not grant the agent unfettered power to make financial and legal decisions on behalf of the principal. By contrast, the agent is in a “fiduciary” relationship with the principal, meaning all decisions must be made either at the direction of the principal or in the principal’s best interests. Any financial decisions rendered in the agent’s best interests could result in civil liability, as well as possible criminal culpability.

 

Contact an experienced estate planning attorney today!

 

If you are considering executing a power of attorney, please let us know today!

Filed Under: Delaware estate planning Tagged With: , , ,

Got Children? You Need a Testamentary Guardianship in Your Delaware Estate Plan

August 21, 2014 • Posted by | 1 Comment

 

It’s uncomfortable. It’s emotional. But, it’s necessary.

(No, we’re not talking about divorce today).

A testamentary guardianship is a must have if you are the parent of a young child and are ready to get started on your Delaware estate plan. As we will discuss further below, this necessary component of your will directs what will happen with your children if the unthinkable happens and they are left without one or both parents. The stronger, and more specific, the testamentary guardianship – the better. Once you are ready to get started, contact Stephanie Reid Law right away for assistance with this responsible and realistic element to your Delaware estate plan.

Directing the upbringing of your children

The best starting point when deciding on the terms of your testamentary guardianship is making a choice about who should be appointed guardian(s) of your child upon your demise. If you are confident in the parenting skills of your co-parent, you may decide that you do not need to appoint a guardian to replace you. However, we always recommend including guardianship language in your Delaware estate plan to address the situation where both you and your child’s other parent pass away at the same time.

Choosing a guardian is never easy, and it can sometimes lead to a stressful, painful discussion with your co-parent. However, making a choice is necessary, and we suggest the following factors to consider when weighing your options:

  • Age and Availability: The guardian of your child should be someone who is able and available to fulfill the role of a full-time parent. Someone with strenuous work commitments, significant health issues or who is of an advanced age may be overly burdened by the task, and your child could suffer as a result.
  • Suitability: We all love wild Aunt Jo, and she may be your closest friend in the world. But will she make a good parental figure – particularly in the aftermath of a devastating loss? When deciding on your child’s guardian, aim to pick someone with a stable routine, a clean history and, above all else, the willingness to accept the responsibility.
  • Current Relationship: Does your child have a good relationship with the proposed guardian? Does your child get along with the guardian’s family and children? These are important considerations when deciding if your child will be a good fit in the family.
  • Child’s Wishes: If your child is old enough, and you feel comfortable approaching the topic, it may be wise to discuss your child’s wishes in the event the unthinkable occurs.
Arrange for your child's upbringing with a testamentary guardianship.

Arrange for your child’s upbringing with a testamentary guardianship.

What to include in your Delaware estate plan

In addition to choosing a proper guardian for your child, your Delaware estate plan should also include language articulating your wishes with regard to the upbringing of your child. One important directive is to establish a trust for the benefit of your child from the proceeds of his or her inheritance. Along with establishing a trust, you must also name a trustee to oversee and manage the inheritance corpus for the benefit of your child. This trustee can be the same person as the guardian, a different person, or an institutional trustee (i.e., a bank or financial institution).

From there, the possibilities are endless. If you have unrelenting faith in the abilities of your named guardian to raise your child, you may not need to include any additional information. However, if you have certain steadfast values and principles you would like upheld following your death, be sure to include these in your testamentary guardianship. For example, it is not uncommon for parents to place conditions on the receipt of any inheritance held in trust such as graduating from college.

Contact Stephanie Reid Law today about your Delaware estate plan

Testamentary trusts may be difficult to discuss, but the inter-family tension that can occur in the absence of a clear, delineated guardianship plan can cause unrelenting stress and turmoil for your child. If you are ready to discuss adding or creating a testamentary guardianship as part of your Delaware estate plan, contact us today!

 

 

Filed Under: Child advocacy, Delaware estate planning Tagged With: , ,