QUESTION: It’s too early to prepare a Durable Power of Attorney. I’m healthy and don’t see the need.
Answer: Most people wait until it is too late. Multiple times people come into my office with something like the following: “My wife has been put in the hospital for mental problems and now I want a durable power of attorney so I can pay the bills”, or “my husband has been in a coma or some kind of problem where he can’t communicate for a week. I need a durable power of attorney.”
The problem, is that the very person you are trying to help with the durable power of attorney is the person who must sign the durable power of attorney. One big issue is that one must have the mental capacity to understand what it is that they are signing and the effects of that document. Obviously, if one is in a coma or in a condition where they are not conscious, they cannot sign. On the other hand, if they are conscious, but cannot understand what they are signing because of some mental condition such as dementia or some other similar type condition, then it is likely the durable power of attorney can be challenged or attacked in court.
Question: In other words, you are stating that I should get one prepared now while I’m healthy and understand exactly what I want?
Answer: Yes. The key to preparing a durable power of attorney is to do it while you are healthy, coherent, and know exactly what you are signing. You do not want to wait until it is too late. There is really one purpose for the durable power of attorney. It is to give somebody (an agent) the power and authority to make your financial decisions when you are incapacitated. That is what it comes down to under the law. To pay the mortgage, the bills and many other types of financial matters.
Question: What type of decisions does the durable power of attorney allow the agent to make?
Answer: The durable power of attorney is for financial decision making. It may not seem that it is critically important to take care of before you become incapacitated, but imagine how many financial decisions you do in a particular week. Additionally, without the durable power of attorney, the banks and financial institutions will not speak with you and will not divulge any information and will not allow you to help the very person who was to have made the durable power of attorney. It can be a general durable power of attorney or a specific durable power of attorney. This means if it is general, it basically allows the agent to perform all the financial conditions needed. However, if it is a specific durable power of attorney, then it is for a very specific purpose. Thus, theoretically, you could have a general durable power of attorney with conditions and a durable power of attorney for specific needs with two separate people. These are the typical types of transactions: Real Property Transactions, Tangible Personal Property Transactions, Stock and Bond Transactions, Commodity and Options Transactions, Banking and other financial institutions transactions, Business operating transactions, Insurance and annuity transactions, Estate, trust and other beneficiary transactions, Claims and litigation, Personal and Family Maintenance, Benefits from Social Security, Medicare, Medicaid, or other governmental programs, or civil or military service, Retirement plan transactions and Tax matters.
* * *
Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.
