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Should You Have a Power of Attorney?

Yes, says an Archer & Greiner attorney in our latest edition of "Ask the Lawyer," who explains the difference between the various powers of attorney.

Gerald E. “Jay” Darling is a longtime Moorestown resident, partner and shareholder of Archer & Greiner P.C. in Haddonfield, where he concentrates his practice in all aspects of estate and trust planning and administration.

Q. Should I have a power of attorney?
A. Probably. You have the ability in New Jersey and most, if not all, other states to sign a written legal document called a “power of attorney,” which basically authorizes another individual (or several) to handle your general affairs.

Q. What is a “durable” power of attorney?
A. A durable power of attorney is one that “endures” and remains effective even if the person making it becomes legally incapacitated.

Q. What is a “springing” power of attorney?
A. A springing power of attorney does not become effective when the power of attorney is signed, but instead “springs” into effect upon the legal incapacity of the person making it. Not all states allow for springing powers of attorney, but New Jersey does.

Q. What is the difference between a “general” and a “limited” power of attorney?
A. A limited power of attorney is for a limited time or for a limited purpose, or both. For example, someone travelling abroad might give his or her spouse a limited power of attorney to attend and participate in a closing for the sale of a house while the maker of the power of attorney is out of town. A general power of attorney is basically saying the person to whom the power of attorney is granted (i.e., the “attorney in fact”) has the power to do pretty much everything the person making the power of attorney (i.e., the “principal”) could do.

Q. So, someone could have a durable, general, springing power of attorney, correct?
A. Yes.

Q. Are there things an attorney simply cannot do under the authority of a power of attorney?
A. Yes, for example, an attorney in fact cannot make or rewrite a will for someone else under the authority of a power of attorney.

Q. I am married. Why do I need a power of attorney? Can’t my spouse simply sign my name?
A. No, your spouse cannot. Your spouse can probably deal with any property the two of you own jointly, but simply being your spouse does not give your spouse the ability to deal with assets titled solely in your own name, contrary to popular belief and “urban legend.”

Q. What is the worst that can happen if I don’t make a power of attorney and I then become incapacitated?
A. In that case, in order for someone to be able to handle and attend to your affairs, they would have to go to court and file an actual lawsuit to be appointed as your guardian, which, even in the best of circumstances, takes at least several weeks and can generate several thousands of dollars in legal fees, all of which can easily and legitimately be avoided by simply making a power of attorney when it is not needed and the maker of the power of attorney is fully competent.

DISCLAIMER: Information provided in “Ask the Lawyer” is for general informational and educational purposes only. It does not constitute legal advice, and may not be used and relied upon as a substitute for legal advice regarding a specific legal issue or problem. Transmission of the information is not intended to create, and receipt does not constitute, a lawyer-client relationship. Legal advice should be obtained from a qualified attorney licensed to practice in the jurisdiction where that legal advice is sought.

Elaine Renoire May 17, 2012 at 12:30 AM
Everyone should execute advance directives, including durable power of attorney. But, the sad reality is judges often disregard DPoA's in favor of a forced guardianship or conservatorship. People need to know that their best laid plans can be - and often are - wiped away with the stroke of a judge's pen and they may find themselves at the mercy of and under complete control of a stranger. Join the national movement for reform of unlawful and abusive guardianships and conservatorships. Join NASGA. Yours, Elaine Renoire NASGA
Thomas D. Begley, III May 17, 2012 at 01:41 PM
Great Q & A from one of the foremost estate planning attorneys in our area. Tom Begley, III, Capehart & Scatchard, P.A.

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