John C. Holden Law Blog

Keeping You Informed


Almost everyone understands the need for a thorough Power of Attorney; right?  It's an essential part of anyone's estate plan that enables the individual's attorney-in-fact to make important decisions regarding your day to day personal/business affairs in an instance where you are incapacitated.  Sounds like a good idea.  But, how closely have you read your Power of Attorney? Does it say what you want it to say or does it simply say what your attorney thinks is best without consideration of your specific needs?  In the past five to ten years since you had your Power of Attorney prepared; have any of your circumstances changed?  Have any of your trusted family members or friends become disabled or died?  Maybe it is time to take your Power of Attorney out of hiding and re-read it.

First of all, what "type" of Power of Attorney do you have?  Is it a "Durable" Power of Attorney? Meaning that when you sign it, it is immediately in effect.  Or, is it a "Springing" Power of Attorney?  Which means that upon the occasioning of a future event (usually disability) your Power of Attorney will "spring" into effect.  Which would work better from your view point?  

Next, consider what powers are granted to your attorney-in-fact.  Does your Power of Attorney enable your attorney-in-fact to make annual gifts to family members or others?  Does your attorney-in-fact have the power to make elections with respect to any IRA or 401(k) plan that you might have?  Can your attorney-in-fact make elections regarding your required minimum distributions or change your pattern of distribution?  Does your Power of Attorney give your attorney-in-fact the power to make changes to your existing estate plan that might be occasioned by a need to take advantage of certain government benefit programs?  Further, does your attorney-in-fact have the ability to make asset transfers that might not otherwise be permitted in order that you might be able to qualify for government benefits if you do not have long term care insurance.  Does your attorney-in-fact have the authority to change your state of domicile?  If you become disabled with little expectation of regaining your previous quality of life it might be necessary to move you closer to family and to then qualify for Medicaid assistance.

The above questions are just a few examples of the choices that you should explore with your attorney in an effort to make certain that your Power of Attorney really meets your needs.  Bottom line, your Power of Attorney should be more than a simple "fill in the blank" form; it should be tailored to meet your personal goals and objectives.

As an attorney who limits his practice to Elder Law, as well as to Asset Protection and Estate Planning, I understand the need for planning documents that specifically meet the client's goals and objectives.  Contact me for a free consultation to review your existing Power of Attorney to determine whether it meets your stated goals and objectives.


John Holden