Power of Attorney
An important part of lifetime planning is the Power of Attorney. Valid in all states, these documents give one or more persons the power to act on your behalf. The power may be limited to a particular activity (e.g., closing the sale of your home) or general in its application, empowering one or more persons to act on your behalf in a variety of situations. It may take effective immediately or only upon the occurrence of a future event (e.g., a determination that you are unable to act for yourself). The latter are "springing" Powers of Attorney. It may give temporary or continuous, permanent authority to act on your behalf. A power of attorney may be revoked, but most states require written notice of revocation to the person named to act for you.
The person named in a Power of Attorney to act on your behalf is commonly referred to as your "agent" or "attorney-in-fact." With a valid Power of Attorney, your agent can take any action permitted in the document. Often your agent must present the actual document to invoke the power. For example, if another person is acting on your behalf to sell an automobile, the motor vehicles department generally will require that the Power of Attorney be presented before your agents authority to sign the title will be honored. Similarly, an agent who signs documents to buy or sell real property on your behalf must present the Power of Attorney to the title company. The same applies to sale of securities or opening and closing bank accounts. However, your agent generally should not need to present the Power of Attorney when signing checks for you.
Why would anyone give such sweeping authority to another person? One answer is convenience. If you are buying or selling assets and do not wish to appear in person to close the transaction, you may take advantage of a Power of Attorney. Another important reason to use Powers of Attorney is to prepare for situations when you may not be able to act on your own behalf due to absence or incapacity. Such a disability may be temporary (e.g., due to travel, accident, or illness) or it may be permanent.
If you do not have a Power of Attorney and become unable to manage your personal or business affairs, it may become necessary for a court to appoint one or more people to act for you. People appointed in this manner are referred to as guardians, conservators, or committees, depending upon your local state law. If a court proceeding, sometimes known as intervention, is needed, than you may not have the ability to choose the person who will act for you. With A Power of Attorney, you choose who will act and define their authority and its limits, if any.
What are these powers of attorney?
A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself.
The term "durable" in reference to a power of attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a power of attorney at any time for any reason. Powers granted on a power of attorney document can be very broad or very narrow in accordance with the needs of the principal.
Why is Power of Attorney so important?
Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a spouse or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist.
The lack of properly prepared and executed power of attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. All states have legal procedures, guardianships or conservatorships, to provide for appointment of a Guardian. These normally require formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating.
Advance preparation of the power of attorney can avoid the inconvenience and expense of legal proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his/her decision. Once a serious problem occurs, it is too late.
The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following:
1. 2. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to real estate. 3. ENDORSEMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances. 4. PAYMENT OF NOTES, ETC.: To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent. 5. STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities. 6. CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed. 7. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit. To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions as set forth in section 2 of P.L. 1991, c. 95 (c. 46:2B-11). 8. TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing.
You should contact your attorney to have a Power of Attorney Prepared, together with a Will, Living Will and other vital Estate Planning documents.
Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm
Kenneth Vercammen & Associates, P.C,
2053 Woodbridge Avenue,
Edison, NJ 08817,