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A General Power of Attorney is an instrument that allows you to designate a person to act on your behalf. In the instrument, you are referred to as the “Principal” and the person you appoint to help you is called your “Attorney-in-Fact” or “Agent.”
The durable general power of attorney is a useful instrument because it allows the Agent to handle your affairs and sign documents on your behalf when you are unavailable or unable to do so. Your Agent has the power to perform a variety of acts on your behalf, such as handling bank account transactions, filing tax returns, dealing with insurance companies, and even operating businesses. For example, if you are in an accident and injured, or traveling outside the country, the durable power of attorney allows the Agent to handle your affairs for you.
The instrument is a particularly useful device when planning for possible incapacity. This is because the power given to the Agent continues throughout the incapacity of the Principal. The fact that it is effective during your disability is why it is called “durable.” Under common law principles, if you became incompetent, your Agent would no longer have the power to act for you. A power of attorney is effective only while the Principal is alive. The presumption is that a power of attorney made after March, 2012 is durable. Upon the Principal’s death, however, the power of attorney expires.
While a Power of Attorney is extremely powerful, granting an Agent such powers can also lead to mischief or abuse. Under Ohio law, and most flavors of the Uniform Power of Attorney Act, certain powers must be specifically authorized. When you come in to meet with us, we explain what these “hot powers” are, and how we can best protect you without unnecessarily tying the hands of your Agent.
If you do not have a General Power of Attorney in effect when you become incapacitated, a guardianship will most likely be required to handle your financial affairs. Unlike the power given to an Agent under a General Power of Attorney, a guardianship is subject to court supervision, which means it can be costly and cumbersome.
While a General Power of Attorney is designed to be used during your disability in an effort to avoid a guardianship, there are certain things your Agent cannot make you do, such as make you seek appropriate medical care. If you become a danger to yourself or others, your Agent cannot help you. Only a court appointed guardian can. In your power of attorney, you can name the person who you would want to be your guardian, were it ever necessary.
If you contact us, we will be happy to explain to you the benefits and disadvantages of a General Power of Attorney, help you determine whether this instrument is right for you given your particular circumstances, and guide you through the process of naming an Agent and successors.