Orange County Blog

Friday, September 5, 2014

Avoiding Conservatorship with a Durable Power of Attorney

A simple way to avoid a Conservatorship is with a document called a Durable Power of Attorney (DPA).  The DPA allows you (the Principal) to name an agent to make financial decisions for you during periods of incapacity, which is usually defined as occurring if two doctors sign certificates under penalty of perjury that state that they have examined you and determined that because of a mental illness or injury, you are not able to handle your own financial affairs.  At that time, your hand-picked agent (called your “Attorney-in-Fact”) can do all the things on your behalf that a court-appointed Conservator can do.

The obvious benefit of the DPA is that there is no court involvement and therefore matters can be handled much easier, cheaper, and faster than through Conservatorship.

There are many kinds of documents called Powers of Attorney.  All of them terminate upon the death of the Principal.  What we are talking about here is usually a “Springing” Durable Power of Attorney, which means that it only springs into effect upon the future incapacity of the Principal.  (If you are married, your spouse can be given authority as your Attorney-in-Fact to act in your stead even if you are not incapacitated, but only out of town or otherwise unavailable).

So, for example, in your DPA, you would name your spouse if you’re married as your Attorney-in-Fact to act on your behalf if needed, and if your spouse is unavailable or unwilling, your adult children can be named as alternates, or any other adult that you have total confidence in can serve as your Attorney-in-Fact.  Co-Attorneys-in-Fact usually must act together.

Beware of General Powers of Attorney, which are effective immediately upon signing and are not effective upon the incapacity of the Principal!

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