Albemarle Tradewinds July 2017 Web Final

Power of Attorney – Understanding the Basics
By: Stella Knight
Stella Knight
Attorney
Estate Planning & Elder Law
Wills and Trusts
Power of Attorney & Living Wills
Asset Protection
Guardianships for Adults & Children
Probate
Licensed in North Carolina & Florida
751 Body Rd, Hertford NC 27944
(252)264-3600
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website - http://www.stellaknightlaw.com/
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Question:
I am confused and hope you can clarify some issues for
me. My mother is 77 years old and lives independently
in her Elizabeth City house. I live here in Elizabeth City
and my brother lives in Maryland. Although mom gets
forgetful at times, she continues to pay her bills, to make
decisions about her certificates of deposit and to manage
many, if not all, of her financial decisions. My friends at
work keep telling me that I must get “power of attorney”
for my mother. I really don’t know what they mean. I visited
the library and there was a form dealing with health
care issues – is this form a power of attorney?
Concerned Daughter
Dear Concerned,
The form I saw at the library was a health care power of
attorney. This document gives the person you designate
as your health care agent broad powers to make health
care decisions for you, including the power to consent
to your doctor not giving treatment or stopping treatment
necessary to keep you alive. This power exists only to
those health care decisions for which you are unable to
give informed consent. I recommend your mother consider
executing a health care power of attorney naming
you as her first choice for agent and your brother as second
agent. Since you are local and the one that would
be called upon to assist your mother, if necessary, you
would have the legal authority to make any health-related
decisions for her. If you were unavailable, then you
brother would have the decision-making authority. This
is not the only power of attorney that I recommend for
your mother.
There is much confusion about “Powers of Attorney.”
First, let’s define a Durable General Power of Attorney.
This is a legal document where you (the principal)
authorize another person or entity (the agent), whether
family member, friend or bank, to act on your behalf
should you become disabled, incapacitated or need
their help. Generally, this power of attorney deals with
financial assets and real estate. The agent has broad
authority to deal with the principal’s asses. For example,
the agent may make decisions concerning real property
transactions, personal property transactions, bond, share
and commodities transactions, tax issues, and social
security issues to name a few. The document states
the powers that are given to the agent. The power of
attorney is durable because the agent’s powers are not
affected should the principal become incapacitated or
incompetent in the future. Pursuant to a durable power
of attorney, the agent may continue acting on behalf of
the incapacitated principal. This is particularly important
should the principal suffer from dementia or Alzheimer’s
disease. The durable general power of attorney must be
recorded after the principal becomes incapacitated, but
may be recorded at any time after signing the document.
Contract a durable general power of attorney with a specific
or limited power of attorney. A limited power of attorney
is usually for a specific task – for example, selling an
automobile or paying bills from a specific bank account.
Once the transaction is completed, the agent no longer
has any authority to act on behalf of the principal.
I recommend that everyone, regarding of age or financial
position, consider executing both a durable general
power of attorney and health care power of attorney.
Yes, even if all your mother’s financial assets are in joint
names (your mother, your brother and you), these documents
are important. Joint ownership is not a substitute
for executing these powers of attorney. You must execute
both documents when you are competent. It has
been said, “If you fail to plan, then you plan to fail.”
In conclusion, I recommend your mother, your brother
and you discuss these various legal documents. Ultimately,
it is your mother’s decisions whether decides to
execute these documents.
The information contained in this column is of a general
nature and does not constitute legal advice. The characters
in this article are fictitious.
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