A Power of Attorney seem like a straightforward solution when someone else needs to take action on your behalf. However, in cases of incapacity they may not be your best solution. You have options and should discuss these with an attorney.

The danger in a durable Power of Attorney (except for healthcare reasons) is that there are no adequate enforceable guidelines on use. The person with Power of Attorney is open to use it however they see fit, regardless of whether you would agree with their actions. A national study reveals that 66% of powers of attorney are misused or abused.

The second problem is that the Power of Attorney ceases at death. Even if someone is using their Power of Attorney responsibly, they will almost always need to continue management or transfer management after your death. They cannot do this with a Power of Attorney. After your death, their ability to manage anything ends.

The third problem is that the courts don't always hold up a Power of Attorney. If you have someone managing your affairs under a Power of Attorney, they could be broadsided with a court challenge to their right to do so. This can add a unnecessary and complicated layer of legal problems during your incapacity.

The solution? Plan for incapacity with a living trust under which your successor Trustee takes over management of your assests if you are incapacitated. A Trustee has no ownership interest, so his or her creditors have no claim on your assets held in the Trust. Plus, you specify definite guidelines of use. Trusts also have historically high standards of responsibility and accountablility. This allows you to continue control after incapacity according to your wishes and guidelines.

Robert Focke and Associates offers free initial consultation on estate planning, so that you can understand your options. Please contact our offices at 713.850.7799.