An Overlooked Limitation Of A Durable Power Of Attorney

September 15, 2022

Having a durable power of attorney is a critical component of incapacity planning. Virtually every adult should have one on file because anyone at any age can suffer a life-altering accident that leaves them incapacitated. If this does happen and you don’t have a durable power of attorney in place, you will force your family and loved ones to enter into a legal process for guardianship—which can be expensive and time-consuming. After an accident, you not only need someone to advocate on your behalf, but you need to ensure they have the means to do so.

Once you learn about how vital these documents are, you will be hard-pressed to live without one. Furthermore, don’t make the mistake of opting to download a DIY power of attorney document. Having an attorney is your means of knowing that it is done correctly. Without this, you will not have the confidence and peace of mind that comes with proper estate planning. For example, if you have a power of attorney, it does not grant someone the authority to make decisions on your behalf if you become incapacitated. A durable power of attorney, however, does.

What a Durable Power Does Do

It isn’t an exaggeration that a durable power of attorney is one of the most essential documents in your estate plan. It gives someone else the authority to make financial and medical decisions for you. Additionally, it is effective as soon as it is signed. Before 2011, you could have a springing power of attorney. It was named that because it “sprung” into effect upon incapacitation as opposed to it being signed. If you created an estate plan before 2011, you need to update it because these documents are no longer valid.

Don’t Make This Common Mistake

Although a durable power of attorney is a critical document to have, it is not an all-encompassing estate planning tool. For instance, imagine that your aging mother has an attorney draft her a durable power of attorney. You become the agent or the attorney-in-fact, enabling you to manage her finances, pay her bills, and buy things using her money. If she ever becomes incapacitated, you can speak to the doctors and advocate for her to receive the type of treatment in accordance with her wishes.

Though a durable power of attorney grants you a significant amount of ability to care for your mother, it ends if she passes away. All the power you had is no longer applicable. People who assume a durable power of attorney is an end-all may not have a will or a trust. This leaves the previous attorney-in-fact powerless.

Don’t Live Another Day Without an Estate Plan

A significant amount of estate planning centers on knowing that someone will be there to take care of you if you are incapacitated or pass away. Those who land under the false assumption that they don’t have enough assets to warrant an estate plan will never reap the benefits of creating documents such as a durable power of attorney. Decide to start today. Contact ElDeiry & ElDeiry, P.A., to schedule your consultation today.

Having a durable power of attorney is a critical component of incapacity planning. Virtually every adult should have one on file because anyone at any age can suffer a life-altering accident that leaves them incapacitated. If this does happen and you don’t have a durable power of attorney in place, you will force your family and loved ones to enter into a legal process for guardianship—which can be expensive and time-consuming. After an accident, you not only need someone to advocate on your behalf, but you need to ensure they have the means to do so.

Once you learn about how vital these documents are, you will be hard-pressed to live without one. Furthermore, don’t make the mistake of opting to download a DIY power of attorney document. Having an attorney is your means of knowing that it is done correctly. Without this, you will not have the confidence and peace of mind that comes with proper estate planning. For example, if you have a power of attorney, it does not grant someone the authority to make decisions on your behalf if you become incapacitated. A durable power of attorney, however, does.

What a Durable Power Does Do

It isn’t an exaggeration that a durable power of attorney is one of the most essential documents in your estate plan. It gives someone else the authority to make financial and medical decisions for you. Additionally, it is effective as soon as it is signed. Before 2011, you could have a springing power of attorney. It was named that because it “sprung” into effect upon incapacitation as opposed to it being signed. If you created an estate plan before 2011, you need to update it because these documents are no longer valid.

Don’t Make This Common Mistake

Although a durable power of attorney is a critical document to have, it is not an all-encompassing estate planning tool. For instance, imagine that your aging mother has an attorney draft her a durable power of attorney. You become the agent or the attorney-in-fact, enabling you to manage her finances, pay her bills, and buy things using her money. If she ever becomes incapacitated, you can speak to the doctors and advocate for her to receive the type of treatment in accordance with her wishes.

Though a durable power of attorney grants you a significant amount of ability to care for your mother, it ends if she passes away. All the power you had is no longer applicable. People who assume a durable power of attorney is an end-all may not have a will or a trust. This leaves the previous attorney-in-fact powerless.

Don’t Live Another Day Without an Estate Plan

A significant amount of estate planning centers on knowing that someone will be there to take care of you if you are incapacitated or pass away. Those who land under the false assumption that they don’t have enough assets to warrant an estate plan will never reap the benefits of creating documents such as a durable power of attorney. Decide to start today. Contact ElDeiry & ElDeiry, P.A., to schedule your consultation today.

Alternative Options for the Role of Personal Representative

July 23,2020

An important part of estate planning is naming a personal representative of your will. After you pass away, this is the person who will be legally responsible for making sure your financial matters are handled in accordance with your wishes as outlined in the will. Some of the personal representative’s duties include paying taxes and bills on behalf of your estate, passing ownership of your assets to your beneficiaries, representing your estate in court, and making sure your property is well-maintained during the interim between your death and the time when your loved ones can inherit what you left behind.

Most people choose a trusted and respected loved one — typically a family member or extremely close friend — to act as their personal representative. However, this isn’t always an option. Perhaps you’ve outlived your friends and never had any children. Perhaps your only child is struggling with alcoholism or mental illness and you do not trust him or her to handle such serious matters. These circumstances happen, and we want you to know it’s okay. There are alternatives!

Option #1: A Trust Company

Trust companies have a long history of administering estates. They know how to handle any complicated issues that may arise because they have an abundance of experience. It is also beneficial to choose a trust company rather than an individual person because you don’t have to worry about outliving the person you select.

Option #2: Your CPA

Do you work with a certified personal accountant? Many (though notably not all) CPAs are willing to act as your personal representative as an additional paid service. The benefits of choosing your CPA as your personal representative include that he or she is already familiar with your unique financial landscape and has a strong understanding of finance tools and conventions.

Option #3: Your Bank

Like a trust company, a bank has the benefit of being a collective rather than an individual. Banks have checks and balances in place to ensure that assets they hold on your behalf will not be mismanaged. Finally, banks are not emotionally involved and do not have any financial motivation to act unfavorably.

Which one is right for you?

If you have decided not to name a friend or family member your executor and are trying to decide which of these options is right for you, it is a good idea to talk to an experienced estate planning attorney. The ElDeiry & ElDeiry team is here to help you with this and all your other estate planning issues. Contact us today!

The Top 4 Things You Can Do Today to Protect Your Children in the Future

July 23,2020

If you are a parent, you likely spend a large amount of time in your day to day life working hard to ensure that your children are protected and taken care of at all times. But have you ever considered what would happen to your children if something unexpected occurred and you were no longer there to care for them. While we all hope we’ll live to a ripe old age, we never know what tomorrow holds. It is wise to take measures to ensure that your children will be cared for in the future, even if you are not there to care for them yourself. In today’s blog post, we’re looking at four things you can do right away to make sure your children are protected no matter what the future holds.

1. Make a Revocable Trust.

Trusts are a useful estate planning tool. After you pass away, they can help your loved ones avoid the hassles and expenses involved with Probate Court. Trusts also have the added benefit of letting you grant a trusted individual (called a trustee) the ability to manage the assets you’ve worked hard to accumulate, on behalf of your children until they reach a certain age, where they are a bit more financially responsible than the age of 18.

2. Create or update your will.

If you want to protect your children, it is essential to have a will in place. Your will is a document in which you dictate what you would like to have happen to your assets after you pass away. How do you want your assets to be distributed among your children? Should other loved ones inherit as well? Your will is your children’s greatest protection against inheritance theft. It also names who you would like to be the guardian of any minor children who are left behind when you pass away

3. Take out a life insurance policy.

If you have dependent children, life insurance is a very important financial tool. A good policy will take care of your children’s living expenses, educational costs, etc. if you suddenly pass away. Without a life insurance policy, it is likely that your family will need to use your resources and investments to pay off your expenses like your mortgage and debts. This might leave your children with very little or even nothing.

4. Name a guardian.

Who will care for your children if you pass away before they turn 18? The guardian that you name in your will will assume all of your responsibilities. It will be up to him or her to make sure your kids are cared for and pay for their educational expenses if there’s nothing left from your estate. A guardian will also be responsible for your child’s finances until they reach the age of 18. If you do not name a guardian yourself, courts will appoint one. Only you really know who is the best choice for this role, so make sure you express your wishes in your estate plan.

If you want to make sure your children will be protected no matter what, the ElDeiry & ElDeiry team is here for you. We can help with all the steps above and can give you the peace of mind that your estate plan complies with all relevant state laws, so your wishes won’t be disregarded over any technicalities. If you’re ready to get started on your estate plan or need other legal guidance, please contact ElDeiry & ElDeiry today at (954) 670-2800.

Understanding DNR Orders

May 18,2020

As long as you are mentally competent, it is your right to choose whether you accept or refuse the medical treatment recommended to you by your doctors and other medical professionals. You have the liberty to turn down any care, whether it’s lifesaving treatment because you’ve decided to allow a deadly illness to run its course, or getting blood drawn because you don’t like needles. Your right to accept or refuse medical treatment is guaranteed by U.S. law and is included in the American Hospital Association Patient’s Bill of Rights. If you are mentally competent, you are protected from having care forced upon you by healthcare providers.

However, things are different if you are unconscious or otherwise unable to communicate your wishes. In this case, it would be assumed that you would want life-saving action to be taken if you were in danger. That is, unless you have a Do Not Resuscitate Order (DNR). A DNR will prevent medical staff from performing CPR on you in this type of situation.

Typically, a DNR order will put into writing that you do not want to undergo any procedure that has the intention to restore blood circulation and heartbeat in the event of a cardiac arrest. This would include procedures such as CPR, intubation (connecting you to a machine that fills your lungs for you), or electric shocks to restart your heart.

To establish a legally binding DNR, you can request it inside a hospital. It can also be established by a doctor if you have a Living Will or Advance Health Care Directive that clearly states your wishes regarding resuscitation.

DNR orders are sometimes confused with Advance Health Care Directives. Both are documents that allow you the chance to express your wishes regarding medical procedures that you would like to accept or reject in advance in case you become incapacitated later. A DNR order can be a part of an Advance Health Care Directive. However, one can also exist when there is not an Advance Health Care Directive in place.

If you have questions about these documents or want to discuss how you can ensure that your wishes will be respected in case of a medical emergency in the future, the ElDeiry & ElDeiry team is here to help. Our experienced estate planning attorneys have extensive experience handling these matters. Give us a call at (954) 670-2800 to discuss your options.

Turning 18: Why You Need a Health Care Power of Attorney

March 20,2020

On your 18th birthday, you legally become an adult. This brings along all sorts of exciting privileges. You can vote! You can get a tattoo! You can buy cigarettes and lottery tickets! You can open your own credit card and sign contracts on loans, car payments, houses, and more. But there’s one aspect of becoming a legal adult that many people don’t think about until it is too late and they find themselves in a pickle.

After you turn 18, your parents are no longer your legal guardians. That means that if you are injured in an accident and unable to give consent (i.e. unconscious), your parents will not be able to speak to your doctors about your condition, or in some cases even see you. HIPAA (the Health Insurance Portability and Accountability Act) prevents doctors from sharing your medical information with anyone without your express permission.

This is why, as soon as you turn 18, you need to set up a health care power of attorney, also sometimes referred to as a medical power of attorney. If you are a college student or young adult and would like your parents to be able to make decisions on your behalf if you are incapacitated, you need to make these legal arrangements as soon as possible. Every day that you go without them is a risk.

If you are the parent of a young adult, you need to make sure that they are aware of the ways in which HIPAA would restrict you from helping them if they were injured. It is wise to have a conversation about why a health care power of attorney is necessary, and then offer to schedule them an appointment with an estate planning attorney to complete the paperwork. You cannot force your child to make you their health care power of attorney — as an adult it is their choice.

You may hear some people or websites suggest that you can create your health care power of attorney alone, without the help of a lawyer. We highly recommend NOT following that advice, and not just because we’re estate planning attorneys! When it comes to a health care power of attorney, it is absolutely essential to get all the details right. If it is not completely accurate, as well as signed, witnessed, and notarized correctly, it will not be usable, and you probably won’t realize until it’s too late.

If you’re ready to create a health care power of attorney, contact ElDeiry & ElDeiry, P.A. We would be happy to help you take this step in becoming an adult with a plan. To schedule an appointment, just give us a call at (954) 670-2800. We look forward to partnering with you!

Understanding Powers of Attorney

January 20,2020

Powers of attorney can be a helpful tool for people of all ages. Whether you’ve been diagnosed with a disease that could make it difficult for you to function in the future, or you’re just planning some extended travel outside of the country, a power of attorney can help you make sure that your affairs will be handled even when you cannot handle them yourself.

What is a power of attorney?

A power of attorney is a type of legal document that you can use to authorize someone else, called an “agent (whether it’s an individual or an organization) to make decisions on your behalf and represent you in your affairs.

Who needs a power of attorney?

Establishing a power of attorney is a good idea for nearly everyone. Although it’s scary to think about, anyone could be in an accident that leaves them suddenly incapacitated. If you’re in a coma, who will manage everything that you have going on?

Are there different types of powers of attorney?

Yes. There are different types of powers of attorney that grant the person or organization in question different levels of powers regarding different matters, from business to finance to healthcare.

I’ve heard the adjective “durable” used in association with powers of attorney. What does that mean?

A durable power of attorney is any power of attorney that includes a durability provision. The durability provision makes sure that the document stays valid if you suffer from illness or an accident that incapacitates you.

How do I choose who to appoint as my “agent”?

Your agent should be someone you trust to act in accordance with what you want. Many people choose to appoint a relative or a close friend. They need to know and understand your wishes as well as your values relating to whichever part of your affairs you are giving them to manage. For example, the agent of your healthcare power of attorney should know how you feel about things like being kept on life support.

Who can help me set up powers of attorney?