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The durable power of attorney is a key part of estate planning

A power of attorney is an integral part of an estate plan in California and elsewhere. It appoints someone who is a trusted friend or family member to act as one's agent, if the maker of the document ever becomes incompetent to handle his/her own affairs. This may seem like a depressing thing to worry about, but such things do happen. If a power of attorney is not prepared in advance through estate planning, the family may incur extraordinary expenses in  court fees to have a guardian or conservator appointed.

Engaging in a consultation with an estate planning attorney can lead one well on the way to signing a durable power of attorney. A durable power of attorney is one that remains authoritative when the maker of the power becomes incapacitated and unable to handle his or her affairs. It does not have to be used or activated until after the incompetency occurs, but it must be made up while one is in sound mental capacity.

It may be drawn up as a "springing" power of attorney, which makes it effective upon the happening of an event, such as the maker's incompetency that is certified by a physician. In addition, the maker of the power of attorney will benefit by being able to appoint a trusted friend or family member to act as the agent, thus giving a sense of security. That outcome will not always be possible if there is no power drawn up prior to the onset of incompetency.

It is important to have the power drafted by an attorney who is experienced in estate planning. Taking a model on the internet and trying to tailor to your own requirements and to California law can be a tricky and sometimes disastrous maneuver. At the least, if something goes wrong, it will cost extra money to correct. With all things considered, there is no substitute for engaging in an ongoing relationship with an experienced professional who will provide the assurance of keeping one's estate planning documents current and accurate.

Source:, "Find the 'power' of protection", Aug. 11, 2017

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