The Durable Power of Attorney is no longer a luxury. For your Elder Law counsel, it has become essential.
It is the worst economic downturn since the Great Depression of the 1930s. The decline and associated roller coaster ride on Wall Street has made durable power of attorney into not just a luxury when it comes to planning your estate, but an absolute necessity. Some Elder Law attorneys have come to view the instrument as even more integral to contemporary estate plans than a Will or Trust.
A Dow Jones newswire column is a case-in-point. It presents the cautionary tale of a female elder who had recently lost half of $6 million in savings. The losses were incurred almost entirely on the stock market. The woman's woes only intensified when she became incapacitated, and her relatives were stymied when attempting to shift her investments, becoming increasingly frustrated as various remedies were attempted as damage control measures. But they lacked legal authority to take these corrective steps. An inherent irony was that the woman had once executed a power of attorney in case she ever were to become incapacitated, but the issue had become moot as the person she'd nominated had died and she'd neglected to name a successor. If dead men (or women) tell no tales, it's also true that dead friends, no matter how trusted, cannot follow through with their power of attorney responsibilities.
Such columns have also tackled what many consider to be the thorniest question when executing a power of attorney. Is there someone you can actually trust with this power? Trust is always a thorny issue, but perhaps it is better to avoid naming someone if one-hundred percent trust has yet to be established. In fact, the powers of attorney instrument has become the subject of frequent "horror stories" in recent years, especially since the onset of our current Great Recession. In fact, exploitation of vulnerable elders by rascally persons misusing their powers of attorney roles is becoming epidemic.
But this doesn't make the instrument less necessary in these difficult times, assert Elder Law experts. If someone trusted can be found, and if proper safeguards are in place, such as deciding who retains originals of the power of attorney document prior to when the instrument may be needed, then it can work well indeed. A power of attorney can take effect immediately or can become effective only when the subject is incapacitated as defined in the document and confirmed by a physician. In 2009, the need for a durable power of attorney has never been greater.