Long Island Elder Law & Estate Planning

The legal device known as the power of attorney is used for a number different purposes across different legal specialties. In the estate planning field, a particular type of power of attorney is used to account for the possibility of incapacity.

With a power of attorney you name someone else who is legally empowered to act on your behalf. This person is referred to as the agent or attorney-in-fact.

A power of attorney that is not specifically designated as durable would not remain in effect if the grantor of the device was to become incapacitated. Durable powers of attorney do remain active even if the person who granted the power becomes incapacitated. This is why durable powers of attorney are utilized for incapacity planning purposes.

Because the agent is alternately referred to as an attorney-in-fact, some people make assumptions with regard to the qualifications that the agent must possess. In reality, the agent does not need any specific legal credentials. Any adult who is of sound mind can act as an agent under a power of attorney.

However, if you have someone in mind to act as your agent, you should discuss the matter with this individual before you take action. The agent that you choose must be willing to act in this capacity. You cannot force someone to act as an agent under a power of attorney.

Food for Thought

While any competent adult can technically act as an agent, there are some things that you may want to take into consideration when you are selecting an agent.

You never know what the future holds, so you should have a durable power of attorney in place when you are still a relatively young adult. If the agent is ever called upon to act on your behalf, it probably won’t happen for quite a while. It could be a matter of decades.

As a result, you should consider the life expectancy of the agent that you choose as compared to your own life expectancy.

There is also the matter of geographic location. Your agent could be called upon to act on your behalf in an ongoing manner. If the agent lives in another country, or on the other side of this country, the geographic impediment could present a problem.

Incapacity Is Common

A significant percentage of people ignore incapacity planning because they think that they will always be able to handle their own affairs. The facts tell a different tale.

While there are other causes of incapacity, Alzheimer’s disease alone is enough to make incapacity planning essential. This disease strikes approximately 45 percent of people who are at least 85 years of age.

Schedule an Incapacity Planning Consultation

If you would like to put an incapacity plan in place, contact us to schedule a consultation. To do so, you can send us a message through this website.

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About Eghrari Wealth Training Law Firm

Mark S. Eghrari is an attorney in private practice in Smithtown, New York. He has been in practice since 1988. Mark S. Eghrari provides extensive estate and tax planning services to individuals and businesses. Mr. Eghrari’s primary focus is helping clients avoid probate, minimize or eliminate Federal and State Estate taxes and protect their assets from the high cost of nursing care, if they become ill.