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If you're concerned that at some point in your life you won't be able to care for yourself then you may want to strongly consider appointing someone you trust will take over your affairs and that can function as your legal stand in. By creating a durable power of attorney, you grant a person of your choice usually a spouse, close friend, business associate or relative the authority to make some or all legal, financial and medical decisions on your behalf.

Power of attorney agreements can cover some areas of decision making or all areas: You, as the principal (the person granting permission), are free to set the terms and the length of the agreement, defining or limiting the authority delegated to your legal stand in, who is called the attorney in fact.

You can create a so called simple (or common law) power of attorney if, for example, you are going to be traveling out of the country for some time and want someone to manage your affairs while you are gone. An older person might confer power of attorney after the death of a spouse if the prospect of managing his or her financial affairs alone seems overwhelming and just not worth the worry.

A WORD OF CAUTION: Because a limited power of attorney is automatically voided if you (the principal) become incapacitated or incompetent, it's important for you to create either a durable or a springing (occurs subject to an event) durable power of attorney.


Before It's Too Late

Hard as it is to imagine not being able to act on your own behalf, it's critical that you make such contingency arrangements while you are still physically and mentally competent. You want to make sure that you will successfully confer power of attorney, without threat of challenge by your heirs, spouse or other family members who thought that the person you designated didn't have your or their best interests at heart.

There are plenty of possible reasons for incapacitation or incompetence. Even becoming clinically depressed could lead to your incapacity. You could suffer the gradual loss of your abilities due to the onset of mental dementia a serious loss of intellect and memory that results, literally, in forgetting how to function and is associated with aging. Perhaps you'll be temporarily or permanently incapacitated by a stroke or fall into a coma after an automobile accident.


Durable or springing durable power of attorney

Either with some differences will ensure that if you become incapacitated you won't leave your family in the lurch, uncertain how to or legally unable to take care of your affairs, except where a spouse is co owner of a joint bank or brokerage account. They otherwise may be forced to go to court to request that the state appoint one of them as your legal guardian. If you lack immediate family, the state itself may step in and appoint a guardian for you.

All states, including Texas, recognize a durable power of attorney, an agreement that remains valid even if you are overtaken by a devastating illness and can no longer make decisions on your own. If you want to give someone power of attorney, and want to be sure he or she can continue to make financial, legal and medical decisions on your behalf if you become totally incapacitated, then a durable power of attorney is for you.

Many states recognize a springing durable power of attorney, which is activated only when you become incapacitated or incompetent and provided you remain in that condition. This is a wise safeguard to have arranged in advance. This will aid you in the circumstance that if something disastrous occurs to you, you can be sure that a person you know and trust will take over handling your affairs.


Health care power of attorney

This document is more limited in scope than durable or springing durable power of attorney, this form allows your agent to make only health care decisions on your behalf when you can't. He or she could choose or dismiss a doctor, consent to surgery and represent your wishes about terminating life support (for more about the life support issue, see the following section on living wills and health care power of attorney).


How to Confer Power of Attorney

Power of attorney agreements can be made using prepackaged legal forms that follow the laws of your state, or they can be drawn up by a lawyer for a small fee. It's a good idea to contact your banks and brokerages to see whether they require that you use their forms to grant a power of attorney.

It is recommended that a power of attorney agreement be witnessed and notarized. Doing so increases the chances that third parties such as banks, creditors and hospitals will take the document seriously and honor your wishes. If the document is not legally convincing, they may challenge your designee's authority. You should sign several powers of attorney and have them notarized because some institutions will want to keep an original.

To make sure your wishes are adhered to, it's a good idea to give copies of the power of attorney to family members, financial advisers and doctors, as appropriate. Keep an original somewhere safe, but accessible, in case it is needed. (A safe deposit box may not be a good choice if you are the only person with access to it.)


If You Change Your Mind

Should circumstances change, you can revoke a power of attorney or a durable or springing durable power of attorney at any time, as long as you have the competency to do so. Simply put you just need to put the revocation in writing, following the same procedures as when you invoked it, and give copies to the concerned parties. If you become incompetent or incapacitated, a simple power of attorney will be automatically voided anyway.


Seeking Legal Guardianship of Your Loved One

It's great if Mom and Dad had the forethought to confer durable or springing durable power of attorney or to create a living trust while they were able. But what if they neglected or refused to give someone else legal authority over their affairs? Now they're doing irresponsible things and risking their financial or physical well being. What can an adult child do?

You could seek legal guardianship from the court, or ask to have it appoint you as their representative payee to handle their social security, civil service or veteran's benefits. The court will appoint you legal guardian only as a last resort, and you'll have to prove that your parents are past the point of granting you power of attorney. To seek guardianship, you must file a petition with the probate court.

As legal guardian, you can make decisions for your parents in all areas of their lives, but you may be subject to your state's supervision. Some states allow you to seek limited guardianship, whereby you are authorized to simply pay bills for your parents.

If the state grants you a conservatorship, you may manage all of your parents' financial affairs but no other aspect of their lives.

Once you assume guardianship of the estate and the person, you are responsible for managing their financial affairs and for supervising their actions; you'll be responsible for any trouble that they might get into or damage they might cause.

The purpose of this article has been to provide the reader with a broad overview of the issues of conferring power of attorney and legal guardianship. This information does not replace the advice of an attorney. Any specific questions or situations should be directed to the attorney of your choice immediately.
 
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