Q: Why do I need a Durable Power of Attorney if I own everything jointly with my spouse?
A: While you generally would have access to jointly titled bank accounts and brokerage accounts, owning everything jointly with your spouse does not give you the power to manage every asset if your spouse is incapacitated. Without a Durable Power of Attorney, you could not sell, rent or lease jointly owned property. Without a Durable Power of Attorney naming you as your spouse’s agent, you could not manage or draw upon your spouse’s IRA, even if you were the beneficiary, until your spouse dies. You cannot sign tax returns on behalf of your spouse or access information regarding his or her social security or other government related accounts without a valid Durable Power of Attorney.
While joint ownership can be an economical estate plan, it is not fool-proof. Everyone over the age of 18 should designate one or more persons to act on their behalf should they become incapacitated, with the use of a Durable Power of Attorney. Your Durable Power of Attorney can be drafted to provide your agent(s) with all the powers allowed by the State, or you can limit their power to very specific matters and time periods. The agent(s) can be given immediate authority to begin acting on your behalf, even if you are perfectly healthy, or the Durable Power of Attorney can be effective only upon your incapacity.
In addition to a Durable General Power of Attorney, every adult should also have a Health Care Power of Attorney, naming one or more agents to act on their behalf. We recommend that your Health Care Power of Attorney be drafted to allow your agent(s) to have immediate authority, so that in the event of an emergency, they will be allowed to work with your doctors straightaway, instead of having to wait for two (2) physicians to declare you incapacitated. The time it takes to arrange for two (2) physicians to examine you and make their decision, may be the difference between life and death. While you have full capacity, you can always verbally revoke this Health Care Power of Attorney should your agent try to make a decision with which you disagree. You should provide your primary care physician with a copy of your Health Care Power of Attorney for your medical file. You also should provide a copy to any hospital where you are admitted for a procedure. It’s important to review your Powers of Attorney every 3-5 years to ensure no changes or updates are necessary.
For more information on Durable Powers of Attorney or Health Care Powers of Attorney, or other estate planning matters, contact Davis & McCann, P. A., Dodge City, KS. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Association of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on estate planning, Medicaid and Long-term Care Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate Transactions, and related matters.
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