An Enduring Power of Attorney allows you to plan for the administration of your affairs in the event that you become permanently or temporarily mentally incapacitated.
It differs from a Last Will and Testament, which only becomes effective upon your death, and is necessary to ensure your assets are dealt with accordingly in such situations (i.e. Alzheimer’s disease, coma, etc.). If you become mentally incapacitated, your spouse and children or your business partners are not automatically authorized to deal with your assets. Typically, your representatives (including your spouse) are only authorized to deal with your assets if they apply for and receive an expensive and time-consuming Court Order granting an appointment of Trustee/Guardian under the Adult Guardianship and Trusteeship Act, which is subject to periodic review and renewal. These processes can be a significant and ongoing burden on those who would step in to assist with managing your affairs.
An Enduring Power of Attorney is a formal legal document prepared by you, while you have the capacity to prepare the same, whereby you decide which individual(s) will be authorized to deal with your assets in the event that you become temporarily or permanently mentally incapable of making your own decisions. It can be “immediate” (takes effect once signed) or “springing” (only takes effect if and when you are incapacitated). Aside from special and urgent circumstances, an Enduring Power of Attorney is typically prepared to be “springing” and takes effect upon the written advice of two doctors that the individual does not have the mental capacity to make their own decisions. This Enduring Power of Attorney should not be confused with a General Power of Attorney which is often granted to family members or business partners. A General Power of Attorney ceases to have any effect the moment that you become mentally incapacitated.
While a Last Will and Testament remains the central document in estate planning considerations, an Enduring Power of Attorney and Personal Directive, which will be addressed in a separate article, round out the package of estate planning documents we generally recommend our clients prepare, in order to provide certainty and security for their assets, family members and business partners.
If you need assistance with estate planning or wish to discuss Enduring Power of Attorney, we welcome you to contact our office at 780-469-0494 or email us directly at firstname.lastname@example.org.