The Advantages and Abuses of Powers of Attorney

Powers of Attorney are legal documents whereby the maker of the document (the “Principal”) authorizes another (the “Agent”) to act for him under circumstances that can be narrow or broad, depending upon the language of the Power of Attorney. There are Powers of Attorney governing financial affairs and Powers of Attorney governing medical affairs.

Such Powers of Attorney are executed by elderly individuals in need of assistance managing their affairs either due to a permanent or temporary disability and/or by individuals as part of an “Estate Plan” that anticipates the need of such assistance in the future. Such anticipatory Powers of Attorney become effective only upon the disability of the Principal.

Powers of Attorney are also made by individuals who will be unavailable for a specific period of time. For example, a military member who is facing deployment might execute a power of attorney in favor of his spouse so that his affairs may be handled in his absence. Similarly, an individual relocating for employment may execute a power of attorney giving a friend or family member the authority to sell the Principal’s residence.

Powers of Attorney for Financial Affairs may be general or limited. General Powers of Attorney are very broad and allow many types of transactions, including the sale of real estate. Limited Powers of Attorney convey to the Agent the authority to handle a specified task, such as attending and signing documents at a real estate settlement, or selling and transferring title to a vehicle.

Anyone 18 years of age and older can execute a Power of Attorney in Pennsylvania, but the Principal must have legal capacity at the time that he/she reads and signs the document. If the Power of Attorney is “durable”, it remains valid even after the Principal no longer has legal capacity, perhaps due to an injury or an illness such as Alzheimer’s disease. All Powers of Attorney in Pennsylvania executed since 1993 are durable unless otherwise stated.

Powers of Attorney for Medical Affairs delegate to the Agent the power to act on the Principal’s behalf regarding medical issues and decisions in the event the Principal is unable to make those decisions himself. The agent under a health care Power of Attorney may authorize the principal’s admission to a medical, nursing, residential or similar facility, enter into agreements for care, and authorize medical and surgical procedures.

For all Powers of Attorney there are a few things to consider to help protect yourself against fraud:

• Choose the right person to act as your agent under a Power of Attorney. Make sure that the individual is someone you trust will make decisions on your behalf in accordance with your wishes and to your benefit when your wishes are not known.

• Be careful what powers you give to an agent under a Power of Attorney. Make sure you read every word and understand what powers are included in any Power of Attorney before you sign the document. Powers of Attorney can be broad or narrow, allowing a full grant of authority to act for the Principal or providing only a limited Power of Attorney for a particular event or situation, i.e. Power of Attorney for the sale of real estate.

• Consider appointing an alternate person to act as your Agent in the event your primary Agent is unavailable for some reason.

• In some limited circumstances, you may consider appointing two persons to serve simultaneously. While this may be more cumbersome and less efficient, it may provide a process of checks and balances in that your agents must agree on decisions and actions. This could be especially true if you are unable to name a person you trust completely and fully.

• Prevent premature use of the Power of Attorney by your agent, you can withhold the document until it is needed or require that a non-agent hold the document with full instructions for release to the agent.

• Ensure that a Power of Attorney can only be used if and when you become disabled by including language requiring that the Agent also present a letter from your physician stating a diagnosis of incompetence.

• You may require your agent to account periodically to a disinterested third person.

• Your Power of Attorney should only be written by your lawyer, pursuant to your specific instructions.

The attorneys at Knight & Moskow, P.C. are well versed in the preparation of Powers of Attorney and can provide invaluable advice concerning these important documents. To discuss your family law needs in Delaware County, Chester County, Philadelphia County or Montgomery County, call our office at (610) 565-8210, or contact us via email at inquiries@knightandmoskow.com to schedule a consultation.

Why Is Creating A Will In Pennsylvania A Good Idea?

Perhaps the most compelling reason to make a Last Will and Testament in Pennsylvania is that you are ensured your exact wishes being carried out upon your death. The execution of a Will is especially necessary for individuals with minor children or disabled dependants, those with specific burial wishes, and individuals with specific estate administration requirements.

If you choose not to execute a will, Pennsylvania has a system of laws for an intestate estate that will provide the framework for distribution. (20 Pa. C.S. §2102, 2103) This distribution may be contrary to your wishes, but without a Pennsylvania will, this is the framework that will be used:

STATUS DISPOSITION
Married, no surviving children or parents Spouse receives the entire estate
Married, no surviving children but one or more surviving parents Spouse receives first $30,000.00 plus one half of the estate
Married, surviving children of the decedent and spouse Spouse receives first $30,000.00 plus one half of the estate
Married, surviving children of the decedent only Spouse receives one half of the estate
Single, with children Children receive the entire estate
Single, no surviving children but one or more surviving parents Parent(s) receive the entire estate
Single, no surviving children or parents but one or more surviving siblings Siblings(s) receive the entire estate
Single, no surviving children or parents or siblings but one or more surviving grandparents Grandparent(s) or their descendants receive the entire estate, one-half to each side of the family
Single, no surviving children or parents or siblings or surviving grandparents or grandparent’s descendants Grandparent(s)’s siblings receive the entire estate and their descendants

If the estate does not meet any of the above criteria, the estate will pass to the Commonwealth of Pennsylvania.

Often we associate wills with assets and the division of property or inheritance. While these things are important, executing an estate plan is even more important for individuals with minor children and disabled dependants. Through the execution of a will, trusts can be established to provide financial stability for your loved ones, and a guardian can be nominated to provide the kind of care you desire for those dependants left behind. Making these desires known through your last will and testament is perhaps the most important thing you will leave for your dependants.

Navigating through the estate planning process doesn’t have to be a daunting process. With careful guidance from the attorneys at Knight & Moskow, P.C., family lawyers located in Media, Pennsylvania, an effective estate plan can be established, and all contingencies will be discussed and addressed. This plan could include any, or all, of the following:

• revocable or irrevocable trust
• real estate trusts
• living wills/advanced directives for health care decisions
• durable powers of attorney for financial affairs
• durable powers of attorney for medical affairs
• pet trusts

Depending on your individual requirements and desires, a very specific estate plan can be established for you. It is important to plan as much as possible for the unexpected, however difficult the contemplation of such events may be. A well-prepared estate planning will serve to put ease your mind, and those of your loved ones.

To discuss your family law needs in Delaware County, Chester County, Philadelphia County or Montgomery County, call our office at (610) 565-8210, or contact us via email at inquiries@knightandmoskow.com to schedule a consultation.