When Should I Update My Power of Attorney?

Many of the same events that would prompt you to update your estate planning documents like a will should cause you to reconsider whether or not your power of attorney still makes sense.

This can include recently having gotten married and wanting to designate your spouse as your agent, getting separated or divorced from your current spouse, a child or other family member who is grown in maturity and has shown they want the responsibility of serving in this role or there are updates in your state laws that impact your current POA document.

Another common reason to consider making changes to your power of attorney are problems with your agent. A person you appointed months or years ago might not be the most appropriate choice going forward. For example, if your appointed agent is deceased or otherwise incapable of handling the responsibility, is under investigation for a crime or is in jail, if you’ve had a falling out with your agent or if you no longer trust in your power of attorney agent’s abilities to handle your medical decisions or financial decisions, you will want to discuss with your estate planning lawyer who should instead be appointed in a power of attorney document.

These questions are not always easy to answer and require careful consideration from a thoughtful lawyer who has been there before and has helped many other clients navigate this situation. Set up a consultation today to discuss whether your existing power of attorney document accomplishes your goals.

If you need support with any aspect of Maine or NH estate planning, we’re here to guide you.


Four Important Terms Related to Powers of Attorney

A power of attorney can be specially crafted to align with your individual needs and expectations. It is very important to familiarize yourself with some of the different aspects of different power of attorney forms to ensure that you have selected the right type of power of attorney based on your individual circumstances and the person you intend to appoint.

A power of attorney allows you to name an individual referred to as an agent or an attorney in fact who will act in your place in the event that you become incapacitated and are unable to act on your own. There are four primary types of powers of attorney:

  • A general power of attorney gives your agent all of the powers and rights that you have yourself, such as signing documents or making financial transactions and more. This is often used by people who are not incapacitated but need additional support with their financial management.
  • A limited power of attorney names explicit rights to a power of attorney agent has when it comes to acting in your stead.
  • A springing power of attorney enables your attorney in fact to step in and make decisions on your behalf if you become incapacitated but it’s not effective till you do become incapacitated. When using a springing power of attorney, it is very important that the standards for determining that you are incapacitated and triggering the action in the power of attorney are clearly laid out.
  • A durable power of attorney can be limited or general in scope but stays in effect after you have become incapacitated. No one can represent you if you have become incapacitated without a power of attorney unless a court appoints a guardian or a conservator. Your durable power of attorney is a key document and a component of your estate plan that will remain in effect until you pass away unless you rescind it while you are not currently incapacitated.

For further information about creating your own power of attorney document, set up a time to speak with an estate planning law firm today.



Adding and Removing a Power of Attorney

You can find many different power of attorney forms online. However, this is gamble because what seems like minor mistakes in these templates or forms could prove very problematic in the very circumstances you need someone to use a power of attorney. It is very helpful to instead talk with an estate planning lawyer about your specific needs so that they can recommend the documents and language that would work the best for your individual situation.

If you currently hold the power of attorney for another person when you are communicating with health care providers or others on their behalf as you conduct business, it’s a good idea to keep a certified copy of this document with you. Always use your name and indicate that you are signing as a power of attorney if you are signing a document as someone else’s attorney in fact.

You will also want to ask questions about the preferred format in which you might need to provide documentation prior to signing. If you currently are creating a power of attorney to enable someone else to serve as your attorney in fact, you can revoke it at any time so long as you are mentally competent to do so. It is strongly recommended that you revoke any existing power of attorney in writing and notify any businesses or financial institutions that your attorney in fact might have previously dealt with when this document was active.

The question of who is eligible to override an existing power of attorney for a loved one is much more complicated. If you suspect that another person is currently abusing their role as power of attorney, you may be able to use legal action to have them removed. An attorney who has experience with elder law and estate planning can be an instrumental component of this process. Schedule a consultation with a lawyer today if you have further questions about what you want to do.


What Powers Can I Authorize Under a Durable Power of Attorney?

A durable and general power of attorney is an important document that should be at the cornerstone of your estate planning. A power of attorney is most effective in the event of incapacity, such as an illness or event that renders you unable to make decisions or take certain actions on your own. You can decide what works best for your situation and then discussing setting your POA up that way with your lawyer.

A durable general power of attorney authorizes a person to act in a wide range of business and legal matters, which will stay in effect even if you are incapacitated. You can decide that your general POA becomes effective only if you are incapacitated or it becomes effective immediately upon the signing of the document.

The person that you appoint as your attorney in fact or agent can handle many types of transactions on your behalf, including filing tax returns, selling and buying property, managing bank accounts and applying for government benefits. Without a general durable power of attorney in your estate planning document set, your family might need to go to court to request that you be declared incompetent so that a person can take care of your finances for you.

It’s important to recognize that a general durable power of attorney is not the same thing as a durable healthcare power of attorney. You’ll need to sit down with an estate planning lawyer to discuss some of the distinctions between various types of power of attorney documents and which of these are most appropriate for your individual situation.

Need help with your POA assignment in New Hampshire or Maine? Discuss your options by contacting our firm today.



What Does a Convenience Account Have to Do with a Power of Attorney?

If you are concerned about being able to keep up with your banking and your bill paying, using a durable power of attorney is an excellent way to appoint another person to make these decisions and take these actions on your behalf. In the process of setting up your planning, you might run across the term convenience account.

If you are older and concerned about keeping up with your financial affairs, it is natural to think about whether or not there is a family member or other person who could help you manage deposits, writing checks or getting cash out of the bank for you. This can backfire very badly if you do not accomplish the process of setting up a power of attorney in the right way.

Adding someone as a co-owner of your bank account, for example, empowers them to make all decisions as if it was their own bank account. This is different than setting up a power of attorney and can lead to problems like sibling conflict, creditor access, and misuse. The best way to give another person authority over your financial matters is to sign a document known as a durable power of attorney for finances.

Your attorney in fact would still be eligible to spend your money with regard to your bank account but there are two primary restrictions that add a layer of support for you. These are that the funds must be used only for your benefit and at the time that you pass away the money becomes part of your estate, meaning that it does not go to the person that you named as the attorney in fact.

Schedule a consultation with a trusted estate planning lawyer to discuss how a power of attorney document can be used for your best interests.  Our New Hampshire law office is here to support you with the creation of your power of attorney document so that you feel confident about your decisions.



Should My Financial Power of Attorney Agent Get Extra Authority?

Using a simple power of attorney form makes it seem as though it will be a seamless process to transfer financial authority to this person. However, you might not realize in filling out a simple online form or downloadable PDF that there are significant powers a DIY template like this does not include.

It’s important to educate yourself about these possibilities so that you can determine whether there are circumstances in which you need to give your agent extra authority. Basic power of attorney documents usually do not include the authority to:

  • Delegate the agent’s existing powers to another individual.
  • Update designations for beneficiaries on retirement or life insurance accounts.
  • Amend or create trusts on behalf of the principal in the power of attorney.
  • Create gifts from a property.

One of the reasons that simple forms don’t include these powers is because they can be very dangerous if given to the wrong individual. This could ruin your estate plan and eliminate this property if you don’t have any trusted POA agent. However, if you do trust your POA agent and want this person to have as many choices as possible for taking care of you, these powers can be essential. You’ll want to discuss the options with your estate planning attorney to determine whether or not you wish to allow for additional care and options.

Need more information about what this looks like in New Hampshire or Maine? Use us as a resource- schedule a call with our NH estate office today.

Preventing Challenges or Conflicts with Your Power of Attorney Document

Creating a financial power of attorney is one of the first and most important steps that you can take to protect yourself in the event that you become unable to make decisions or take actions with your finances.

However, you’ll want to ensure that your financial power of attorney is properly drafted and accepted. If you think that someone might end up going to court to challenge your durable power of attorney for finances or arguing that you were in fact coerced into signing it, there are several proactive steps you can take in drafting and signing the document to minimize these problems. First of all, if you previously created a financial power of attorney document by yourself, you might want a lawyer to review the document.

An experienced and knowledgeable estate planning lawyer can help you answer questions about the POA as well as any other estate planning documents you might have created. You might also be anticipating challenges to a trust or a will. A knowledgeable estate planning attorney can answer questions for all of these issues too.

A couple of key steps can minimize the opportunities for someone to challenge the validity of your financial power of attorney. While you may certainly hope that no one will end up arguing about the legality of this document, being proactive can help reduce expenses and delays with regard to your agent under the power of attorney taking the action you desire. Some actions you can take to minimize the risk of challenges to your financial power of attorney include:

  • Get a doctor’s statement saying that you appeared to be of sound mind at the time you signed the financial power of attorney.
  • Sign your document in front of witnesses and a Notary Public.
  • Make a videotape of the signing ceremony.

While we certainly hope you never need to fight back against a challenge to your financial power of attorney, it is a smart idea to take these proactive steps to avoid a challenge. Schedule a consultation today with an estate planning attorney in New Hampshire.