Family Attorney » Family Member

First-Time Landlord – Your Guide to Renting Out a Single-Family Home

admin — Fri, 23 Apr 2010 01:30:31 +0000

“First-Time Landlord: Your Guide to Renting Out a Single-Family Home” by Attorney Janet Portman, Marcia Stewart, and Michael Molinski is one of the NOLO/USA TODAY collaborations that are described as the leading publisher of legal information for consumers teamed with the nation’s largest circulation newspaper, to produce great books that feature up-to-date legal and financial expertise, a reader-friendly style, and USA Today’s famous graphics. I find these books to be just that, a great series of books and this one is no exception. I liked it and found it very practical.

“First-Time Landlord” provides a very good overview of being a landlord of a single-family home, and much of the information is relevant for other types of properties as well. The book is easy to read, organized well, and contains all of the basic topics you should know if you desire to be a landlord. However, for some topics, you will want more detailed and in-depth information and will have to look to other resources. In fact, there are several places in this book where they refer the reader to “Every Landlord’s Legal Guide” also published by Nolo. (I own and have reviewed that book and think it would be an excellent companion to this one)

This book covers the following topics:

One: Is Owning Rental Property for You? This chapter focuses on the good and bad parts of being a landlord and gets you thinking about why you want to be a landlord, what kind of property, what your profit may be, and what your goals are.

Two: So Happy Together: Landlording With Family or Friends. Should you be a landlord with a friend or family member? This chapter will help you decide, and provide guidance on how to do it.

Three: Preparing and Marketing Your Rental Property. This chapter is an overview on making sure your property is in rentable or better condition and then how you should go about advertising and showing it.

Four: Screening and Choosing Good Tenants. Remember the movie “Pacific Heights” where Michael Keaton terrorized his landlords Melanie Griffith and Matthew Modine? You don’t need a tenant that bad to realize the difference good tenants and bad can have on you being a landlord. This chapter will help you find good ones.

Five: Preparing a Lease and getting the Tenant Moved In. This chapter provides some information on lease and rental agreements but is one of the chapters that refers you elsewhere for assistance in drafting the document you choose. Good chapter for introduction to topic.

Six: Manage Your Rental Income to Maximize Tax Deductions. Because tax laws change so often, I recommend you use this chapter, which has some good advice, as a starting point to know what to talk about with your tax adviser. It is good basic advice, but you should seek professional advice from someone in your state and who keeps on top of all of the changes.

Seven: Keeping Things Shipshape: Repairs and Maintenance. If you own it, you are going to have to deal with fixing it. This chapter provides some good advice on the legalities of your obligations as well as some suggestions on adopting a good maintenance and repair system. For those not into handyman activities, the provide some information on hiring someone else to do the work.

Eight: Landlord Liability for Injuries, Crimes, and More. This chapter provides some basic information regarding liability for tenant injuries, environmental health hazards, crimes and some guidance on insurance. Every landlord need to be aware of these issues and unfortunately may have to seek further information if something bad happens.

Nine: Living in Perfect Harmony? Dealing With Difficult Tenants. You will not always have ideal tenants, and even if you do some problems may arise. This chapter has some good basic information on common problems and some suggestions on methods to resolve disputes. I’m glad they listed mediation, because as a mediator, I feel this is a great way for disputes to be resolved, rather than entering more expensive litigation. I would suggest learning more about the topics in this chapter from other resources since it could be very important during your time as a landlord.

Ten: Don’t Want to Do It Alone? Hiring a Property Manager. This chapter explains what a property manager does, and helps you determine if hiring a property manager is right for you. If it is, this chapter provides some guidance on how to find a good one.

Eleven: Read to Quit? Exiting the Rental Property Business. All good things come to an end, and this final chapter will help you plan your exit strategy. Good things to consider when you are ready to sell.

No one book has everything you need to know about the real estate business. However, if you are thinking about becoming a landlord, this is an excellent starter text to provide you with solid basic information. After reading this book you will be able to determine if you really want to be a landlord and will have the knowledge to get started. You will then probably want to invest in more real estate/landlord resources. This one is an excellent start!

By: Alain Burrese

When to Consult a Personal Injury Attorney

admin — Thu, 15 Apr 2010 08:20:52 +0000

If you have been injured in a automobile accident, in your workplace, or in a commercial location and you believe that the actions or in actions of another person are to blame, you should consider consulting a personal injury attorney. While accidents by their very nature are often random occurrences for which no one is at fault, any injury that you or a family member have sustained as a result of the negligence or malice of others is cause for a personal injury claim.

Why Pursue Legal Action?

When you or a member of your family is injured, you will face unexpected expenses which, depending on the severity of your injuries, can become long-term drains on your finances. Medical bills are only a part of the expense associated with accidental injury. You will need time away from work, and in some cases, your injury might result in a permanent disability which prevents you from working at all. Even if your recovery is underway, unforeseen complications may develop in the future.

If you do not seek monetary compensation from the person or business at fault for your injuries, you are jeopardizing your family financial future. By consulting with a personal injury attorney to discuss your options, you can see to it that any current and future expenses resulting from your injuries will be covered.

How do I Know Who is Liable for My Personal Injury?

Often, you need not look very far for the at-fault party. For example, you probably have a valid claim for damages if you were injured in a motor vehicle accident and the driver of the other vehicle

o is legally at fault according to traffic laws, or
o was driving recklessly or exceeding the speed limit, or
o was driving without a license, or
o was impaired by drugs or alcohol, or
o was inattentive to his driving (i.e., talking on the phone, shaving, reading a map, etc.).

Your personal injury attorney can help you determine responsibility for the injury and the resulting damages you will seek.

What Types of Injuries Qualify?

Any injury resulting from the negligence or deliberate malice of an individual or corporate entity in one of the following general categories may qualify for a legal personal injury claim:

o Motor vehicle
o Medical malpractice
o Product liability
o Wrongful death

Contact a personal injury attorney today to safeguard your family economic future.

By: Lenell Burke

8 Things to Know About Power of Attorney For Finances

admin — Mon, 01 Mar 2010 08:17:50 +0000

A power of attorney for finances can be a valuable tool, especially for families caring for older adults. You can use it to help them manage specific transactions, to assist them for just a short time, or to regularly manage their everyday affairs. And what’s called a durable power of attorney for finances sets up a simple, relatively inexpensive way to handle their finances if they ever become incapacitated. If you and they are considering a power of attorney for finances, here are some things to keep in mind.

Would a power of attorney help older family members now with their everyday finances?

Even if they’re still competent to make major financial decisions, one or more of them may be finding it difficult to manage all their everyday money matters. Maybe your father’s eyesight isn’t sharp enough to confidently read financial documents or your mother’s hearing isn’t good enough to negotiate telephone transactions. Maybe it’s not easy for them to get around, make trips to the bank, or oversee property.

In these situations, they might get some relief by executing a general power of attorney for finances. This document would give someone — you or another family member — the authority to act on your their behalf in any financial transaction but would not take away their authority to act on their own whenever they choose.

Do your family members need a limited power of attorney to help with specific transactions?

They might still be able to handle everyday money matters without help. Even so, they might not be comfortable handling more complicated transactions that come up from time to time. These might include buying a car, making an insurance claim, buying or selling a home, or arranging long-term care.

For any particular situation in which they feel unsure of themselves, they could execute what’s called a limited power of attorney for finances. This would authorize someone — called an agent or attorney-in-fact — to act on their behalf only for the specific transaction listed in the document. The power of attorney would end once the transaction was complete. Sometimes an ending date is placed on the appointment of the agent as an extra limitation.

Would a temporary power of attorney for finances help protect your older family members while traveling?

It might.They may regularly spend time away from home, perhaps even out of the country. Or they may be planning a trip at a time when they know a specific financial matter is likely to need attention. If so, they could execute a power of attorney for finances — either a general power of attorney or one limited to specific transactions — to operate only during the time they’re away. The power of attorney would expire on the date they’re to return home, as specified in the document. As with any other type of power of attorney, they could revoke it — meaning it would no longer be effective — earlier, as long as they’re still mentally competent.

Should older family members consider a durable power of attorney for finances in case they become incapacitated?

One of the most difficult and complicated situations any family can face is the sudden and permanent incapacitation of someone close to them. The problems are worse if that person hasn’t prepared a document that authorizes someone to act on his behalf regarding financial matters that may continue needing attention for as long as he lives. Although it may make him nervous to give anyone else power over his finances, without such a document, your family may be faced with the complicated and expensive process of having a conservator or guardian court-appointed for him.

Fortunately, there’s a simple document that makes this court process unnecessary. It’s called a durable power of attorney for finances — the word durable means that it remains in effect after the person is incapacitated. Although it’s a good idea to have a lawyer review the document, preparing it is a relatively simple and inexpensive matter that can save untold distress. Every older adult should consider having a durable power of attorney for finances. In fact, it’s never too early to have one in place — no one expects to have a stroke or accident, but when it happens the patient’s family may need financial authority.

Who should serve as the agent under a durable power of attorney for finances?

It’s important to pick the right person to act as the agent (or attorney-in-fact) who’s given authority under someone’s power of attorney for finances. Trustworthiness is most important, of course. But beyond that, different people might fit different needs. For complicated one-time transactions, the agent should be familiar with the particular financial matter. For temporary handling of everyday money matters while the person is away, it should be someone with easy access to the necessary paperwork. For ongoing, general power-of-attorney duties while the person remains in charge, it should be someone who gets along well with him and can easily accept what he does and doesn’t want done for him.
The most important choice of an agent is for a durable power of attorney. This is someone who will retain authority indefinitely if and when the person granting the power of attorney is permanently incapacitated. The durable power-of-attorney agent should not only be capable of handling all financial affairs but also be willing and able to give sufficient time and energy to these responsibilities over the long term.

Does someone need a durable power of attorney for finances if all his assets are held jointly with his spouse?

If your father, for example, and his present spouse, have all their income and assets under both their names, it may not seem as if there’s any need for a power of attorney for finances. If something happens to your father, the spouse already has authority over the assets. But a durable power of attorney for finances is still a good idea. That’s because one spouse may become incapacitated at the same time, or soon after, the other. Or, a separate asset or income might later come to your parent without his spouse’s name on it.

Does someone need a durable power of attorney for finances if he’s set up a living trust?

The trustee of a revocable living trust may have much the same authority to deal with someone’s finances as the agent does in a durable power of attorney. Even if he has a living trust, however, it’s still a good idea for him to execute a durable power of attorney for finances. (He could name the same person to both jobs — trustee of the living trust and agent in the power of attorney.)

The reason it’s wise to have a separate document is that not all his income and assets may wind up in the living trust; if some income or asset comes to him after he’s incapacitated or wasn’t placed in the trust through some oversight, the trustee would have no authority over it.

Who should have copies of a power of attorney for finances?

The original power-of-attorney document should be kept in a safe place, either at home, in a safe deposit box, or at his lawyer’s office. The person named as agent or attorney-in-fact in the document should be given a certified copy and told where the original is. Alternate or successor agents should also get certified copies and be told where the original is, as should close relatives. His tax preparer, accountant, lawyer, and broker should have copies in their files. And each financial institution where he regularly does business or maintains an account should also have a copy for its files.

Power of Attorney for finances

By: Joseph Champagne

What is a Durable Power of Attorney Form?

admin — Thu, 24 Dec 2009 07:51:44 +0000

A durable power of attorney form is made to help you plan for unfortunate events such as a serious injury or illness. With a durable power of attorney form you can appoint someone to legally act on your behalf, which is called a “agent” or “attorney-in-fact”. On the form you can limit your agent to act on your behalf for a limited or very specific task or event. You could appoint a family member, advisor, or a trustworthy friend or institution like a bank.

The difference between a durable power of attorney and a regular power of attorney is that a durable power of attorney will still be legally valid even if you become incompetent or unable to make your own decisions. With a regular power of attorney it will become legally invalid if you become unable to make your own decisions. All fifty states now permit the use of a durable power of attorney, and it can not be revoked simply because the ‘principal’ becomes incapacitated or mentally incompetent. Upon death though, your durable power of attorney will be immediately revoked.

Mainly, a durable power of attorney is used for convenience purposes. Suppose you have your home listed for sale, and you could not be in town to complete the legal transcation. You can use a durable power of attorney to a appoint a ‘attorney-in-fact’ to manage these kind of transactions, and you could have your ‘agent’ complete the transcation legally for you. Your agent can sign the documents, and negotiate the sale for you.

Also, you can revoke a durable power of attorney anytime, as long as your competent. To revoke it simply sent your agent a written notice notifying him or her that the document has been revoked. Once your agent has notice of your revocation, the agent can no longer legally act on your behalf. Doing so would be illegal, although any actions taken prior to the date of the revocation is still legal.

Another thing you could do is make your durable power of attorney effective only upon your incapacitation. This document is often referred as the “springing” durable power of attorney. This is because it “springs to life” on a specific occurence in the future; your incapacity. Its important to include a detailed definition of “disability” to make it perfectly clear when your agent can act on your behalf.

Don’t procrastinate, executing a durable power of attorney can help you manage your life and protect your family in case you become seriously injured or incapacitated.

By: Nicholas Copernicus

Mesothelioma Attorney Fights For Your Rights!

admin — Tue, 01 Dec 2009 07:06:48 +0000

Mesothelioma is a serious, life threatening cancer that has a low survival rate and can be quite painful. It is also one of many cancers that show no outwards sighs until the disease is well progressed and irreversible.

What causes this horrendous disease?

Asbestos.

If you or a beloved family member has been exposed in any way to asbestos, then you must get a mesothelioma diagnosis as soon as possible. The cancer, which eats at the lining that covers the organs (mesothelium) and is usually found in the chest area or pelvic regions, usually shows no symptoms until it is much too late to do anything about it.

Early mesothelioma diagnosis is critical to adding years to your life. Sadly once one develops mesothelioma, there is no cure, however, medical science can give you the precious time you otherwise would not have if you catch the disease in its beginning stages.

A mesothelioma diagnosis is crucial to achieving that goal.

If you have seen a qualified physician and obtained a recent mesothelioma diagnosis, you should hire an experienced mesothelioma attorney to fight for you and your family’s rights.

Dealing with any cancer can be time consumptive and financially draining. As you try getting your health back on track, your savings and monetary reserves can and will get depleted. Meanwhile, the very people who caused your issues could be literally getting away with murder.

Most companies that used asbestos, which has the primary carcinogenic agent that causes mesothelioma cancer, knew about the potential health risks. This makes them criminally liable and to open to lawsuit.

Your mesothelioma attorney will go over your case with you, educating you on what your rights are under the law.

The company lawyers will try to bully you if you go it alone, offering a settlement that will barely pay for the costs of your very important tests.

They will also try to mislead you, making you believe that you really don’t have a case, when the very opposite is true. Your mesothelioma attorney knows the laws and can make them play fair.

A mesothelioma diagnosis can have a devastating impact on your life. Great representation can mean the difference between a few hundred dollars and millions. Don’t let you or you family get shortchanged! Hire a competent mesothelioma attorney and protect you and your family’s future.

They may give up hope and feel that they should just be allowed to die so that they do not burden anyone. However, there are treatments available for mesothelioma symptoms, and while the quality of life might be somewhat diminished, there is still hope for these individuals to enjoy the time that they have left.

In addition, some of these individuals are younger – they were the children of those that worked with asbestos, and they picked up the disease from exposure to their parent, who often feels guilty. A mesothelioma diagnosis is not the victim’s fault, and a good mesothelioma attorney can ensure that he or she sees that as the truth. In addition, they can work with family and friends to help them through the difficulties that a lawsuit might present.

When a mesothelioma attorney is located and the victim feels comfortable with that person, it is usually a good indication that he or she has found the ‘best’ lawyer for the case. Experience and education are important, of course, but the skills and abilities that a person has are not always evidenced by the education that he or she has gotten, or how many cases that individual has worked on, so an individual with should choose an attorney that seems like the best fit for the case.

By: Nick Johnson

The Relevance of Getting a Long-term Family Attorney in Los Angeles

admin — Fri, 27 Nov 2009 11:59:49 +0000

Many people think that getting the services of an attorney for the family on a long-term basis means keeping a legal counsel on retainer. However, hiring a long-term family attorney has its advantages. For many people, a long-term family attorney is helpful in many ways.

One of the main purposes of getting a family attorney is to avoid searching frantically for one when the need arises. Another thing, you do not have to deal with a different attorney each time you have a dispute to settle, whether at work or within the family. Your long-time family attorney knows your history and can be very knowledgeable about your issues.

Hiring a long-term family attorney from a reputable law firm is a wise decision. You need not worry about the cost of hiring an attorney for the family. A long-term family attorney can be paid on an hourly basis. There are also attorneys who take cases and work for families on a pro bono basis. In California, for example, attorneys are required to devote certain hours each year to pro bono cases.

You can choose a long-term attorney for the family through the following ways:

• Referral from friends – A friend or a family member is a good source of information on how to find an attorney to serve as a long-term family legal counsel. A referral from friends or relatives who worked previously with an attorney may provide important information on an attorney’s background and credentials.

• By peer reviews – To know any information about an attorney, you can refer to attorneys’ ratings review that is an important source of an attorney’s credibility.

Choosing an attorney to serve the long-term legal needs of a family is never easy. Hiring attorney does not always guarantee that you get the quality of service you desire.

However, you can ensure that an attorney can serve your interests and protect your rights by asking yourself the following questions before hiring a long-term family attorney:

1. What level of involvement do I want when dealing with a case? Do I want to be consulted from time to time? Or do I want to be involved fully?

2. What are my priorities? Do I want my attorney to be more concerned about protecting my business or my family?

3. Am I willing to seek alternative dispute resolutions such as mediation or arbitration rather than pursue a case in court?

4. Is the cost of getting a family attorney a major issue?

After finally deciding that you need the services of a long-term family attorney, it is time to select your choice. If you have narrowed down your choices of an attorney to hire, here are questions you should ask an attorney before settling down.

• What is the attorney’s fee agreement? Can you arrange on a case-to-case basis or an hourly basis of payment?

• Has the attorney handled a similar case before? What is his area of expertise?

• How long has the attorney been in practice? Has he handled trials of family cases before?

• Will the attorney handle your case personally or are other attorneys getting to be involved?

Selecting an attorney is the first step toward protecting your family. Hiring an attorney from a reputable Los Angeles law firm will ensure that you get the long-term legal services you desire for your family.

By: Manuel Salvacion

The Relevance of Getting a Long-term Family Attorney

admin — Sat, 14 Nov 2009 00:45:47 +0000

Many people think that getting the services of an attorney for the family on a long-term basis means keeping a lawyer on retainer. However, hiring a long-term family attorney has its advantages. For many people, a long-term family attorney is helpful in many ways.

One of the main purposes of getting a family lawyer is to avoid searching frantically for one when the need arises. Another thing, you do not have to deal with a different lawyer each time you have a dispute to settle, whether at work or within the family. Your long-time family lawyer knows your history and can be very knowledgeable about your issues.

Hiring a long-term family attorney from a reputable law firm is a wise decision. You need not worry about the cost of hiring a lawyer for the family. A long-term family attorney can be paid on an hourly basis. There are also lawyers who take cases and work for families on a pro bono basis. In California, for example, lawyers are required to devote certain hours each year to pro bono cases.

You can choose a long-term attorney for the family through the following ways:

• Referral from friends – A friend or a family member is a good source of information on how to find a lawyer to serve as a long-term family attorney. A referral from friends or relatives who worked previously with a lawyer may provide important information on a lawyer’s background and credentials.

• By peer reviews – To know any information about a lawyer, you can refer to lawyers’ ratings review that is an important source of a lawyer’s credibility.

Choosing a lawyer to serve the long-term legal needs of a family is never easy. Hiring a lawyer does not always guarantee that you get the quality of service you desire. However you can ensure that a lawyer can serve your interests and protect your rights by asking yourself the following questions before hiring a long-term family attorney:

1. What level of involvement do I want when dealing with a case? Do I want to be consulted from time to time? Or do I want to be involved fully?

2. What are my priorities? Do I want my lawyer to be more concerned about protecting my business or my family?

3. Am I willing to seek alternative dispute resolutions such as mediation or arbitration rather than pursue a case in court?

4. Is the cost of getting a family lawyer a major issue?

After finally deciding that you need the services of a long-term family attorney, it is time to select your choice. If you have narrowed down your choices of a lawyer to hire, here are questions you should ask a lawyer before settling down.

• What is the lawyer’s fee agreement? Can you make arrangements on a case to case basis or an hourly basis of payment?

• Has the lawyer handled a similar case before? What is his area of expertise?

• How long has the lawyer been in practice? Has he handled trials of family cases before?

• Will the lawyer handle your case personally or are other lawyers getting to be involved?

Selecting a lawyer is the first step toward protecting your family. Hiring a lawyer from a reputable law firm will ensure that you get the long-term legal services you desire for your family.

For your legal concerns regarding your personal injury, Social Security claims, employment disputes and business, contact our reputable Los Angeles law firm today.

By: Manuel Salvacion

A Probate Attorney – Finding The Right One For You

admin — Sun, 08 Nov 2009 01:53:32 +0000

Contrary to popular belief, probate lawyers are no different than other lawyers. Probate lawyers work closely with a family member to help with proper distribution of assets after the client has passed away. This article will help you select a lawyer; it may be easier than you think to find a good one.

It is a good idea for you to understand the workings of the probate system before you go in search of an attorney. Upon death, the deceased\’s estate enters into the process known as probate. The reading of the will takes place and the person’s estate is distributed as planned. Sadly, this is when the feuding between family members usually starts. Survivors often find themselves in a conflict because the deceased has not left a will or the will has not been updated for a long time. When someone close to the deceased challenges the will, it then must go through the courts.

A probate lawyer\’s job is to defend his or her client\’s interests. If you are in need of an attorney, it is in your best interest to choose someone familiar with you, your family, and the estate. In challenging a will, consider selecting someone who knows you already, such as a family attorney who is acquainted with you, but did not write the will.

In some situations, use of the family attorney is inappropriate. For example, if you and your sibling argue over your diseased father\’s estate, neither of you can appropriately use the family attorney. If you and your sibling were on opposite sides in a legal dispute, attempting to use the same attorney would be useless for both of you. An attorney cannot represent both parties in a case, as that would be a conflict of interest. To avoid this you should choose an attorney who knows you, rather than one who is the family\’s lawyer.

The majority of people will likely never have the need for a probate lawyer, so you might not have considered it a high priority to have one. However, almost everyone will require a lawyer at least once in their lives. Because typical lawyers deal with wills and probate, your family can benefit thoroughly from the services of an attorney with whom you have a trusting relationship.

By: Lindsey Malberg

The Relevance of Getting a Long-Term Family Attorney

admin — Mon, 26 Oct 2009 16:52:24 +0000

Why You Need a Durable Power of Attorney Now!

admin — Thu, 10 Sep 2009 08:42:23 +0000

Planning for unfortunate events such as serious illness or injury is rarely on anyone’s list of favorite pastimes. Sometimes, though, enduring the small discomfort that may accompany preparing for the unexpected will avoid untold anguish on the part of your family and friends. This is certainly the case with the Durable Power of Attorney, an often simple document that becomes so very important if sickness or injury renders you unable to take care of your own affairs.

Power of Attorney Defined

A Power of Attorney is a document in which you (as the “Principal”) allow someone else (the “Agent” or “Attorney-in-fact”) to act legally on your behalf. The Power of Attorney may be limited to very specific actions that the Agent is authorized to take on your behalf. On the other hand it may give the Agent very broad powers. In either event, the Agent you appoint in the Power of Attorney should be someone that you trust without reservation. That could be a family member, an advisor, a trustworthy friend or a bank or similar institution.

The “Durable” Power of Attorney

The significance of having a “Durable” Power of Attorney is best understood if you know what can happen with the plain old garden variety of Power of Attorney.

If you sign a Power of Attorney that is not “durable,” the document remains effective only while you are alive and competent to handle your own affairs. If you become incompetent or die, the Power of Attorney is automatically revoked by law and your Agent is no longer able to act on your behalf. This prevents a Power of Attorney from becoming irrevocable inadvertently, and, until recent times, it was the only way a Power of Attorney could be prepared.

The non-durable Power of Attorney has limited usefulness for family and estate planning purposes, though, because the Power of Attorney is often most needed when you have become incapacitated! That is when you really need someone else that is able to make legal decisions or take other actions on your behalf.

All fifty states now permit the use of a “durable” Power of Attorney that is not revoked simply because the Principal becomes incapacitated or mentally incompetent. This makes the Durable Power of Attorney a far more reliable document, particularly for family and estate planning purposes, since you may now authorize your Agent to act on your behalf even after illness, injury or other cause has rendered you unable to manage your own affairs. Even with a Durable Power of Attorney, however, the Principal’s death causes an immediate revocation of the document and termination of the powers that are given to the Agent.

A Matter of Convenience

The Durable Power of Attorney is often used as a matter of convenience.

Suppose, for example, you have your home listed for sale. You have also planned a long awaited trip to visit Aunt Trixie in Deadwood, South Dakota, and you are concerned that an interested buyer may come along while you are on the road. A Durable Power of Attorney would be handy here to appoint someone you trust to act in your absence to negotiate the sale and sign any documents that are needed to make the deal binding.

The Durable Power of Attorney could be prepared so that it is effective only until the date you plan to return from your trip, and it might describe specific terms that your Agent must include in the sale, such as the minimum sale price that is acceptable to you.

A Matter of Protecting Loved Ones

What happens if, from illness, injury or another cause, you become physically or mentally incapacitated to the point that you are no longer able to handle your own legal affairs?

Let’s suppose again that while you are incapacitated it becomes necessary to mortgage your home to pay your medical bills. Who will sign the mortgage? Even if your home is jointly owned with your spouse, he cannot obtain a mortgage without your signature.

In those circumstances it would be necessary to request the local probate court to appoint a guardian for you that has the power to handle your legal affairs. In many states, this type of guardian is referred to as a “conservator”. Included in the conservator’s powers might be the power to borrow money and sign a mortgage on your behalf making it possible to obtain the funds needed to pay the medical bills.

However, you may have heard that it is advantageous to avoid probate whenever possible, particularly if there is a good alternative available. The delay and expense associated with probate proceedings and the fact that they are conducted in the probate court, a public forum, make that good advice in most circumstances. And there is a better alternative than probate, but it requires you to act before the incapacity arises – you need to sign a Durable Power of Attorney.

When used in this estate planning context, the Durable Power of Attorney is generally worded very broadly to give your Agent the power to step into your legal shoes in almost any circumstance. In effect, you tell your Agent “You can do anything I can do.”

Now, if you have prepared the Durable Power of Attorney and then become incapacitated, no one has to go through a probate proceeding to appoint a guardian or conservator to act for you – you have already given your Agent the power to do so. As you can see, the Durable Power of Attorney can save precious time and expense in critical situations and avoid having your personal affairs become the subject of a public proceeding.

Appointing a Successor Agent

It is often a good idea to appoint one or more successor Agents. The Agent you appoint in your Durable Power of Attorney may die or for some other reason become unable or unwilling to act as your Agent. In that case, you may be left without someone to act for you when you most need that assistance.

Appointing successors to your first choice of Agent helps insure that someone is always available to handle your affairs. Of course, each successor that you appoint should be someone that has your complete trust.

Revoking a Power of Attorney

As long as you are competent, you have the power to revoke your Durable Power of Attorney. To do so, send written notice to your Agent notifying him or her that the document has been revoked. Once the Agent has notice of your revocation, the Agent may take no further action under the Durable Power of Attorney. However, your revocation will not undo any permissible actions that the Agent has taken prior to being notified that the Power of Attorney has been terminated.

You must also notify third parties with whom your Agent has been dealing that the Durable Power of Attorney has been revoked. For example, if the Agent has been dealing with a stockbroker, you must notify the stockbroker as soon as possible. Do this in writing, as well, and do it immediately. Third parties who do not receive notice of the revocation are entitled to, and probably will, continue to rely on the Durable Power of Attorney.

Making the Durable Power of Attorney Effective upon Incapacity.

It is possible to have a Durable Power of Attorney that only becomes effective if and when you become incapacitated. This document is referred as a “springing” Durable Power of Attorney because it “springs to life” on the occurrence of a future event – your incapacity. The document should include a detailed definition of “disability” to make clear the circumstances in which your Agent may act on your behalf.

Knowing that your Agent is unable to exercise his or her powers until you are actually unable to do so yourself may make using the Durable Power of Attorney more comfortable for you. Unfortunately, even with a good definition of incapacity in the springing Durable Power of Attorney, your Agent may find that third parties are simply not willing to make the judgment that you are indeed disabled. If they are wrong, they may be held liable to you for any damages that you sustain as a result of the error in judgment. You may therefore find the springing document cannot be relied upon in all circumstances.

Don’t Procrastinate!

Estate planning is easy to put off. But don’t! Advance planning, such as executing a Durable Power of Attorney, may make a horrible circumstance for you and your family just a bit more bearable.

By: John Pollock