....Sometimes we plan more carefully for our death than for our disability...some thoughts about the importance of a durable power of attorney in Arkansas....
Have you prepared for disability? Statistics show that one out of every two Americans has a period of prolonged disability during their lifetime. This article concerns planning for your legal disability.
You become legally disabled when you can no longer care for your personal health or safety or manage your financial affairs. This can be the result of mental or physical factors.
The truth is that many people are better prepared for death than disability.
You may already recognize the importance of having a will. You should think of a will as a means of managing your affairs after your death. It disposes of your property after death in the way you want. It may also save probate expenses.
A durable power of attorney manages your financial and personal care decisions during your lifetime. It also can save probate court expenses.
If you become disabled and do not have a durable power of attorney, a court guardianship may be needed to manage your affairs. Suppose money is needed from your bank accounts for your care. Suppose it becomes necessary to sell your land, or vital decisions regarding your health need to be made. Unless you plan properly, a guardianship would be necessary to handle these matters. This is because you are no longer legally capable of carrying them out yourself.
In a guardianship the court selects a person to manage your affairs for you. While court guardianship is intended for your protection, it has disadvantages. The court, not you, selects the person who will manage your affairs. It involves the expense of court and attorney fees, annual accountings, publicity and other matters.
A durable power of attorney is much more efficient than a guardianship. In most cases it does away with the need for a court guardianship. In a durable power of attorney you select a trusted person, or persons, to manage your affairs. This person is here referred to as your "attorney".
You can give your attorney broad power over all your affairs, or you can limit his power with respect to certain matters. Your attorney can be given almost all the powers which you yourself could exercise. Just a few examples of such powers include the right to pay bills, sell property, sign tax return documents, make investments, manage your business affairs, make decisions about where you will live, take custody of your valuables and make decisions regarding your health care.
The term "durable" means that it continues in force even if you become disabled. A regular power of attorney becomes invalid when you become disabled.
You can have a durable power of attorney which becomes effective immediately. It will continue in force when you become disabled. In such a case, your attorney can assist with your affairs both before and after you become disabled. If you prefer, you can specify that your durable power of attorney does not become effective until you become disabled.
It also may be advisable to have a separate document giving a power of attorney for health care. A durable power of attorney for health care is not the same as a "living will".
A living will living will can give a person the power to make decisions regarding terminating life support systems if you become terminally ill or permanently unconscious. A durable power of attorney for health care is broader. While it can include the powers contained in a living will, it can also provide for your health care when you are disabled but not terminally ill or permanently unconscious.
It may be important to act promptly in obtaining a durable power of attorney. You cannot do one once you become disabled. Such a document would not be valid. Once you have done one you can still revoke or change it up until the time you become disabled, the same as with a will. For example, you might change your mind as to who you would like to serve as your attorney.
People sometimes try to use a "living trust" as a substitute for both a durable power of attorney and a will. A living trust is a document in which you transfer your property to a trusted person (your trustee) and direct that he or she manage your affairs both during your lifetime and after your death. It is not recommended as a total substitute for the durable power of attorney. Often people and institutions (e.g. banks, doctors, insurance companies) are more comfortable dealing with a power of attorney than with a lengthy trust document. For a more detailed discussion of living trusts, please read Should You Have a Living Trust?.
Proper legal planning for the management of your affairs during your lifetime, and after your death, gives you security. It helps you know you are acting responsibly in providing for the well-being of yourself and those close to you. Your investment in such planning more than counterbalances the expense and inconvenience which can result from inadequate planning.
If you live in Arkansas, we would be glad to assist you with your estate planning. For an appointment, please call 479-968-4747 (Russellville area) or 888-295-4741 (Arkansas state-wide toll-free).
Copyright (c) 2011, Jim Carfagno, Jr., P.A. All rights reserved.