Excuses People Use to Avoid Making a Lasting Power of Attorney and Why They Are Wrong

Setting up a Lasting Power of Attorney (LPA) is a must in today’s society. But despite this, many people do not have anything in place should the worst happen and they need someone to step in and manage their finances and well being for them.

A Power of Attorney is a document that allows someone you nominate to step in and manage your finances should you not be mentally capable of doing so.

Losing our capacity is not something any of us like to consider a possibility, however it is something that can happen to anyone and we should all be prepared. A few cost effective actions now can save a great deal of time, expense and emotional upset at a later date. As if you lose your capacity without having a LPA in place then your next of kin will have to go down the route of obtaining a guardianship which is a long and very expensive process.

Again, despite this being basic fact many people still make excuses not to put a Power of Attorney in place.

Some of the excuses that I have heard include:

I’m to young to need a Lasting Power of Attorney, those are for old people.

No, they are not, you’re never to young to need a LPA. When people think of losing capacity most of us think of elderly people with dementia, however losing capacity is not something that just happens to the elderly, and there are other ways besides dementia to lose our capacity. There are many ways to lose your mental capacity, an illness, a road traffic accident, a medical accident/negligence, or an assault are just some of the unfortunate events that can lead to a loss of capacity and these can happen at any age.

Lasting Powers of attorney give to much power to other people

No, attorneys cannot do whatever they like. You nominate your attorneys and hopefully that means you would nominate someone you would trust, and if you fall out or have a mishap in the meantime you can amend your Power of Attorney anytime before it is registered. You can also set limits on what your attorneys can and cannot do in the document. If you don’t want them to be able to sell your home for instance then you can stipulate that. As well as you having control of what the attorneys can and cannot do via the document you sign, the attorneys are also bound by laws to always act in your best interest and there are repercussions if they fail to do this.

If I make a Lasting Power of Attorney I have to register it right now, I’ll wait until it is needed.

No, it is entirely possible to write and sign a LPA but keep hold of it until you want to use it. This is because in order for a LPA to be used it must be registered, until it is registered it is just a piece of paper. So, you can make one when you are in your 30’s and not register it until you need it in your 70’s. Waiting until the LPA is needed is very dangerous, as you cannot make a power of attorney when you have lost capacity

In order to make a power of attorney the person making it must have capacity. They must be able to understand and agree to and what they are signing.

A Lasting Power of Attorney doesn’t last forever so what’s the point

There are different types of power of attorney, LPA are permanent, but an Ordinary power of attorney is not. An ordinary Power of Attorney is a document that you can set up to allow someone to look after your affairs while you are not able to, if for example you are out of the country, or unable to leave the house, or are in hospital for a while. This document gives someone else authority to act on your behalf. It is only valid while you still have mental capacity to make your own decisions about your finances. You can limit the power you give to your attorney so that they can only deal with certain assets, for example, your bank account but not your home.

I can only have one attorney and I don’t want to choose, it will cause fights in the family

No, you can have more than one attorney. The role of attorney is difficult at times and there is a lot of responsibility. So you can spread that about by having more than one attorney. This is called a joint attorney. You can appoint any number of attorneys in the same lasting power and you can specify if they can act on their own separately or if they must act jointly and come together. You can have them act jointly on some issues such as sale of property but have them act singly on all other issues there is a lot of flexibility and it is entirely up to you.

It’s too expensive to set up a Lasting Power of Attorney

It might have been expensive at one point in the past but these days it really isn’t. you can hire a solicitor to do this for you at a fixed fee, usually a couple of hundred pounds. Or you can have a go at it yourself using the government website which guides you through the process by asking you basic questions and completing the form on your behalf. It then provides you with instructions on how to sign the document to make it compliant with the regulations.

As you will have noticed the excuses people have for avoiding a LPA are simply untrue. The majority of people do not have a LPA waiting in the wings simply because it is one of those jobs that is often put aside for later, dismissed as unnecessary or considered too expensive.

You should now have a much clearer understanding of why a Lasting Power of Attorney is essential.

If You Need a Great Attorney, This Is the Way to Go

Are you in need of a great Wisconsin attorney? If you are from Wisconsin and need a great attorney, Madison WI is the best way to go. The state of Wisconsin has few cities and Madison is your best bet if you are looking for a great attorney.

Whoever attorney you would hire, there is no guarantee that you will win the case. However, if you will hire an attorney from Madison, you will surely have higher chances of winning the case. This city is known for having some of the best attorneys in Wisconsin and the Midwest.

When you are in need of a great Wisconsin attorney, Madison WI is the best place for you to visit. Regardless of the kind of crime or charges that you are facing, you could surely find the best attorneys in this city. From insurance claims to DUI and from drug possessions to murder, the law firms in Madison have so much to offer.

As the home of many great attorneys in the Midwest, you would surely find a lot of good attorneys in Madison. Choosing may be a bit hard so here are some characteristics of attorneys that you may opt to compare when searching for an attorney in Madison.

First, you should look for their experiences. Look at their education background and the courts where they were trained. You should also look for their years of service. Some law firms claim to have decades of experience. Check if these years of experience are collective or not. Choosing an attorney with the highest years of experience may be a good option but not the sole basis of legal excellence. For instance, most old attorneys surely have more years of experience in trials but there are also new attorneys who could be aggressive and great in representing their clients. Knowing their backgrounds is definitely a must if you want to get the best attorney.

Second, you should also look for the specialties of the attorneys. There are some attorneys that could provide quality legal service to many fields but there are some who specialize in certain fields. For instance, there are some attorneys who specialize in insurance claims while others would be the great choice for DUI or drug possession. Most attorneys and law firms in Madison have websites nowadays and there are profiles of attorneys. It will be much easier for you to compare and choose the attorney who could provide the best legal guidance and service for you.

Third, you should also look for the satisfaction of the attorney’s previous clients. It is normal for most attorneys to lose some cases. However, great Madison attorneys must be able to reduce the charges or penalties for their losing client. This may include reducing the days to be spent in jail or reducing the monetary penalty.

Lastly, you should also consider the legal fee. There are many attorneys that ask for low fee but if you would want quality legal service and affordable rate offers from a Wisconsin attorney, Madison WI is the best way to go. When you need a Wisconsin attorney, Madison WI has the most professional, most aggressive and most guiding ones.

Assigning Power of Attorney (PoA) With Confidence

Incapacity planning, ensuring that there’s a strategy in place if you ever become incapable of managing your affairs, is important.

We all know that. Yet, it’s uncomfortable to think about and therefore easy to put off doing.

A key part of incapacity planning is assigning power of attorney (a legal document giving someone else the right to act on your behalf), but it’s also the biggest hurdle. Giving extra thought to who you choose, and what powers they’ll be granted, can give you the peace of mind to complete your plan with confidence.

Choosing your lawyer

Choosing someone you trust to assign power of attorney is essential. Acting as your attorney involves significant duties and obligations. Your attorney’s overarching duty is to act with honesty, integrity and in good faith for your benefit if you become incapable.

The law lays out specific obligations for the person chosen to hold your power of attorney. Among other things, they will:

  • explain their powers and duties to the incapable person
  • encourage the incapable person, to the best of their abilities, to participate in decisions concerning their property
  • foster regular personal contact between the incapable person and supportive family members and friends, and
  • keep account of all transactions involving the grantor’s property.

The attorney or attorneys you choose to act on your behalf should know these rules, and be aware of other rules set out in the act as well.

For instance, they’re expected to ensure you have a will and, if so, know its provisions. The main reason for this is that your attorney must not sell or transfer property that’s subject to a specific gift in the will, unless necessary.

The act also contains explicit instructions regarding both required and optional expenditures. Examples of the latter include charitable gifts where an incapable person made similar expenditures when capable and so long as sufficient assets are available. Your attorney should also be familiar with rules covering how or when he or she can resign, what compensation they may be entitled to and the standard of care expected of them.

Safeguarding your estate

You can also build a second opinion directly into your power of attorney documents by appointing more than one person. If you name two or more people, they’ll need to act unanimously unless the document states otherwise.

A joint appointment provides a level of protection in that any appointed attorneys must agree on all actions, while a “joint and several” appointment grants flexibility, allowing any one attorney to conduct business independently.

Many people choose to appoint the same people or trust companies to be both their power of attorneys and their executors. Although you don’t need to do so, the same list of key traits – expertise, availability, accountability and trustworthiness – apply to both roles.

It’s also possible to limit the powers granted to your attorney. If you’d like your attorney to act only for a specified time period (maybe a vacation or hospital stay) or in respect of a specific transaction (the closing of a real estate deal), a limited or specific power of attorney is worth considering.

In the case of a general continuing power of attorney, many people want the document to be used only if and when they become incapable of managing their affairs themselves.

Although the document is effective when signed, it is possible to include provisions in the document itself that defers it to a future date or the occurrence of a specified condition (for example, the grantor has a stroke). These are sometimes referred to as “springing” powers of attorney.

Whichever way you prepare your power of attorney documents, careful consideration of who you choose as well as availing yourself of available safeguards will help ensure your confidence in your incapacity plan.

Common Mistakes to Avoid

  1. Making a quick decision: Many people name their PoAs without thinking about their choice’s financial capability, much less their ability to get along with other family members.
  2. Assuming family is always the best choice: It’s far more important to choose someone who truly has your client’s best interests at heart.
  3. Waiting too long: If there’s already a question of diminishing capacity, it’s likely too late to make a power of attorney ironclad.
  4. Not reviewing it: Changing life circumstances and new provincial legislation can make an old PoA invalid.

Plan for Incapacity

Your estate plan doesn’t end with an up-to-date will. It should also anticipate possible future incapacity, which usually means preparing powers of attorney for both property and personal care.

Power of attorney, a legal document that gives someone else the right to act on your behalf, has two main types: one for management of property, another for personal care.

Will and estate planners generally advise preparing both types of powers of attorney. While they are often prepared at the same time as your will, they can be created at any time.

Personal care

With a power of attorney for personal care, you can authorize someone to make decisions concerning your personal care in the event that you become incapable of making them yourself.

You can give power of attorney for personal care if you’re at least 16 years old, have “the ability to understand whether the proposed attorney has a genuine concern” for your welfare, and can appreciate that the attorney may need to make decisions.

Personal care includes decisions concerning health care, nutrition, shelter, clothing, hygiene and safety.

Property

A continuing power of attorney for property authorizes someone to do anything regarding your property that you could do if capable, except make a will.

The law says you’re capable of giving a power of attorney for property if you’re at least 18 years of age, know what kind of property you have, along with its rough value, and are aware of any obligations owed to your dependants.

The term “continuing” (sometimes called “enduring”) refers to a power of attorney that may be exercised during the grantor’s subsequent incapacity to manage property. Ensure the document stipulates that you want the power of attorney to be used only if you become incapable.

What you need to know

A continuing power of attorney for property is a powerful document. Unless otherwise stated in the document, it’s effective when signed, granting considerable power.

In fact, the act explicitly requires you to acknowledge this authority can be misused. And, as part of the capacity test for granting a continuing power of attorney, you must also acknowledge the property you own may decline in value if not properly managed.

A financial institution, land titles office or other third party presented with a continuing power of attorney for property with the restriction “effective only in the event of the grantor’s incapacity” will want evidence of the incapacity.

That evidence could be hard to get. One solution is to set out terms of use in a separate document and have all original copies of the power of attorney held by a trusted third party. You could, for example, direct that document be released only if:

  • You tell the attorney you want him or her to start acting;
  • You are legally declared incapable of managing your property;
  • One or more doctors advise that you’d benefit from assistance in managing your affairs; or
  • Certain family members advise the attorney should begin acting.

No direction could be costly

If you fail to prepare power of attorney documents, it may take an application to court before someone can be appointed to make decisions for you. That can leave you scrambling when you’re in no physical shape do so. Having a will doesn’t help because an executor is only authorized to act after you die.

On top of that, court processes can be both costly and time-consuming. Depending on the circumstances, the Public Guardian and Trustee may have to get involved.

You also lose the opportunity to appoint people or companies of your choosing and aren’t able to establish parameters regarding the actions of your substitute decision makers.