Before we look at the question that serves as the title of this post, we should provide some general information about the value of a power of attorney.
Our firm focuses on elder law and estate planning matters. Elder law attorneys help individuals who are preparing for their senior years. In our field, durable powers of attorney are often used to proactively address latter life incapacitation.
A surprisingly high percentage of elders become unable to handle all of their own decision-making late in their lives. There are many different underlying causes of incapacity as we all know, but Alzheimer’s disease is widespread during our current era. This disease has afflicted approximately 45 percent of people who are 85 years of age and older.
If you were to become unable to communicate sound decisions, who would make them for you? If you do nothing, the state of New York could appoint a guardian to act on your behalf if you become unable to handle your own affairs.
A better option exists if you would rather choose your own decision-maker. You could execute a durable power of attorney to name someone to manage your financial affairs in the event of your incapacitation. The “durable” designation is significant, because this type of power of attorney would remain in effect even if you become incapacitated.
In addition to the financial end of things, you could also name someone to make health care decisions on your behalf. This is done through the creation of a document called a health care proxy.
Termination at Death
Now that we have provided the necessary background information, we can look at the termination issue. A power of attorney, whether it is durable or not, will automatically terminate upon the death of the grantor. As a result, the agent would not be legally empowered to administer your estate.
In a way, this is a disadvantage, because the person who is handling your financial affairs while you are living would be well-positioned to handle the estate administration tasks.
It would be possible to use a revocable living trust as the centerpiece of your estate plan if you would like to create a turnkey situation. If you go this route, you could empower a disability or successor trustee to manage the trust in the event of your incapacitation. The same individual or entity could also manage the trust after your passing.
Contact Our Firm
If you would like to embed an incapacity plan within a broader estate plan, our firm would be glad to help. We offer no obligation consultations, and you can feel free to send us a message through the following page to set up an appointment: Smithtown NY Incapacity Planning Attorneys.
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