Powers of Attorney

Attorney Roberta A. Schreiber, who has specialized in estate planning for more than thirty years, has extensive experience in Powers of Attorney.

A Power of Attorney is a document in which you give a trusted family member or friend the legal authority to take over the management of your finances and legal matters on your behalf, if you are incapacitated. If there is no individual that you wish to appoint as your attorney-in-fact, you may appoint a professional attorney-in-fact, such as your accountant or attorney, or an institution, such as a Bank or trust company. The individual, bank, or trust company who is appointed to act on your behalf, is referred to as your "attorney-in-fact." Your attorney-in-fact is granted the legal authority to act on your behalf, but only to the extent allowed by the provisions contained in the Power of Attorney.

A "General Power of Attorney" gives your attorney-in-fact the authority to manage all of your assets (bank accounts, all types of investments, retirement accounts, motor vehicles, real estate, and a business owned by you), sell any of these assets, purchase assets on your behalf, and to handle any legal matters that concern you. With a General Power of Attorney, your attorney-in-fact has unlimited powers to deal with your assets, but only if you have the mental capacity to give instructions to your attorney-in-fact, or to understand or comprehend the actions that your attorney-in-fact is taking on your behalf.

Because most people want their attorney-in-fact to have these powers if they become incapacitated, a "General Durable Power of Attorney" is appropriate for most situations. A General Durable Power of Attorney stays in effect even if you become physically or mentally incapacitated, are not able to give instructions to your attorney-in-fact, and are not able to understand or comprehend what your attorney-in-fact is doing on your behalf. If you become physically or mentally incapacitated as a result of illness, an accident, or advanced age, and you have a General Durable Power of Attorney, your attorney-in-fact can manage your finances, pay your bills, and sign any necessary legal documents or tax returns without being appointed as your Guardian in a public Probate Court proceeding. Your physical or mental incapacity remains private, known only to family members and friends, and your attorney-in-fact can proceed, whenever necessary, to pay your bills, manage your investments, retirement accounts, real estate, and other assets, make decisions and elections regarding your pension benefits, prepare and sign tax returns, and take care of any other necessary financial or legal matter.

Bank and investment officers are familiar with the General Durable Power of Attorney. If it is necessary for your attorney-in-fact to take over the payment of your bills, he or she must go to your bank or investment company with the original Power of Attorney and personal identification, such as a Driver's License. You do not have to be present. At the bank or investment company, the officer will examine the Power of Attorney and the attorney-in-fact's personal identification.

If the officer is satisfied that the Power of Attorney allows your attorney-in-fact to have access to your bank and investment accounts, and the person presenting the Power of Attorney is the person named as your attorney-in-fact, the bank or investment officer will change the records to allow your attorney-in-fact to make withdrawals from all of your accounts, to sign checks drawn on your accounts, and to make decisions regarding the accounts and investments, such as the renewal of a Certificate of Deposit, the sale or purchase of stock, or investment in a mutual fund.

The bank or investment officer will make a copy of the original Power of Attorney for the bank or investment company records. The original Power of Attorney should be returned to your attorney-in-fact after it has been copied. It is important for your attorney-in-fact to keep possession of the original Power of Attorney. For that reason, It is advisable to execute duplicate originals of the Power of Attorney. That way, if one is lost, or must be mailed or sent out for recording, another original will be available.

Your bank or investment statements may continue to be mailed to you, if you wish to review account activity, or the statements may be mailed to your attorney-in-fact . The information provided by your attorney-in-fact is usually entered into the bank's or investment company's records immediately, so your attorney-in-fact may use your checks to pay your bills directly after the meeting with the bank officer.

The account number is not changed and no new checks have to be ordered. Your attorney-in-fact can use your checks to pay your bills and should sign his or her name on the signature line of the checks. If your attorney-in-fact must sign a legal document, such as a deed or contract, on your behalf, he or she should sign the document in one of the following ways. Either method is permissible.

• "Hilary Clinton, Attorney-in-Fact for William Jefferson Clinton" or
• "William Jefferson Clinton, by his Attorney-in-Fact, Hilary Clinton."

A Power of Attorney should be signed before a Notary Public and notarized. Some states require one or more witnesses to a Power of Attorney, so signing before a Notary Public and two witnesses is advisable. The powers that you give your attorney-in-fact take effect as soon as you sign the Power of Attorney and it is notarized and witnessed, unless you limit the circumstances under which your attorney-in-fact can act.

A Power of Attorney that does not take effect until you are incapacitated, is known as a "Springing Power of Attorney". If you choose this option, you should establish how your incapacity will be established. For example, an Affidavit submitted by your primary care physician could be sufficient to prove your incapacity.

This type of Power of Attorney can be difficult to use. Your physician may be reluctant to give a medical opinion that will give someone else control over your finances, or the Bank may want more than one medical opinion to prove incapacity. As long as you have a trusted family member or friend who can act as attorney-in-fact, the better option is the General Durable Power of Attorney. I

n some cases, a "Limited Power of Attorney" in which you give your attorney-in-fact authority to perform a very specific task, is useful and appropriate. For example, you could give your lawyer a Limited Power of Attorney to represent you at a real estate closing while you are on a business trip. He or she will be present at the closing to resolve any disputes, to sign the closing documents, and to collect the check for the sales proceeds.

If you would like more information about Powers of Attorney or wish to schedule an appointment, please contact us.