Planning for the latter stages of your life may not be the most pleasant exercise in the world but it is necessary all the same. One of the most amazing demographic trends of our time is the fact that people who have reached the age of 85 and above are the fast-growing segment of the United States population. When you combine this with the fact that upwards of 40% of the people who reach this age are suffering from Alzheimer’s disease you can see why incapacity planning is something that elder law attorneys are going to recommend to their clients.
People who do not have an incapacity plan in place are subject to becoming wards of the state, having their affairs handled by a court appointed guardian. Most people would prefer to choose their own representatives, and this is commonly done through the execution of durable powers of attorney. A typical standard power of attorney is no longer valid in the event of the incapacitation of the grantor, which is why the “durable” qualifier is included. Most people will execute a durable medical power of attorney and a durable financial power of attorney and appoint different respective attorneys-in-fact to handle each aspect of the decision-making.
The problem that some people have with a durable power of attorney is the fact that it goes into effect as soon as it is executed, meaning that the attorney-in-fact can act on behalf of the grantor even while the grantor is in perfectly good health. This can be addressed by the use of a “springing” durable power of attorney. This instrument “springs” into effect only when a trigger event takes place, and as it is used in this context the event would be the incapacity of the grantor. So if you want to empower agents to act in your behalf only in the event of your incapacitation springing durable powers of attorney could be the solution.
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