The Durable Power of Attorney document is the estate planning document that everybody needs but nobody thinks about creating.
As a Green Bay estate planning attorney, I often have clients needing assistance drafting their Last Will and Testament. This classic estate planning document work great, under one big assumption: That you die! But what if you don’t die but you’re unable to act on your own behalf? What if you’re incapacitated or incompetent? Then what happens? Who will make decisions for you regarding your estate and personal property? Who will have your best interests at heart?
There are three basic ways an individual can gain power over an incapacitated person’s estate: 1) appointment by a Power of Attorney for Finances, 2) appointment by the court to be a conservator of the estate, and 3) appointment by the court of a guardian of the estate.
It should be noted that only the option of guardianship can happen after the person is incapacitated. It’s rarely safe to make assumptions about who will be selected to be nominated to be guardian. If everyone in your life agrees about what needs to happen and who needs to take charge, decisions can be made relatively painlessly. If everyone can’t reach an agreement — if there’s even one “problem child” in the mix — it can be a mess.
Laws are few when it comes to determining who a court could nominate to be a guardian. Every appointment is settled case by case, and this can get complicated. The court may even choose to put that cousin you hate in charge of your affairs, and what a rotten turn of events that would be! So do yourself a favor and take the time now to create a Durable Power of Attorney document.
A Durable Power of Attorney document allows you to name someone to act when you’re incapacitated. You can appoint the people you trust to look out for you. The Power of Attorney can even nominate potential guardians if the document itself fails for some reason. While you’re at it, name alternates too, so your loved ones aren’t guessing wildly, trying to figure this out for themselves when they probably have other pressing matters to handle.
About Us: Attorney Devin Shanley is the approachable expert clients can trust. A native of Green Bay, Wisconsin, Devin has been developing legal solutions in his beloved hometown since 2012. Married to Mo and dad to two rambunctious kids, he has a soft spot for the Green Bay Packers, grilling out, and playing with his kids. His areas of practice are Estate Planning, Family Law, Business Law, and Non-Profit Organization Law. Schedule your free consultation by calling 920-471-4337.