Durable (Financial) General Powers of Attorney, often just referred to as a "Durable Power of Attorney," are an extremely powerful, and often overlooked part of an individual's estate plan. People often think, "I have a Will, what else could I possibly need?"
While a Will addresses what happens to a person's property at death, a Durable Power of Attorney provides some much needed protection before that person passes away. In a Durable Power of Attorney, the person granting the power (called the "Principal") identifies an individual (called either an "Agent" or "Attorney-in-fact"), who is given the authority to handle the Principal's finances.
Usually the Power of Attorney is only used by the Agent when the Principal is incompetent, but if made effective immediately, the Agent can act for the Principal whenever the Principal is unavailable or unable to act. For example, the Agent might act for the Principal who is ill, or temporarily out of the country, or even when the weather makes it challenging for the Principal to get to the bank. In other words, it is used at the convenience of the Principal. Those examples are important because they point out that the Principal does not give up any authority to act for him/herself. Rather, the Principal has only given the Agent the ability to act for the Principal as needed.
In Ohio, it has been over 10 years since the law governing Durable Powers of Attorney was expanded. Under current law, an Agent can also be given some extremely powerful authority to be involved in the Principal's estate plan. An Agent can be given authority to do one or more of the following, if authorized in the document: (1) Create a trust; (2) Amend, revoke, or terminate a trust, if specific authority to do so is granted to the Agent in the trust agreement; (3) Make a gift; (4) Create or change rights of survivorship; (5) Create or change a beneficiary designation; (6) Delegate authority granted under the Durable Power of Attorney; (7) Waive the Principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; and/or (8) Exercise fiduciary powers that the Principal has authority to delegate.
Further, Ohio law makes clear that the Agent may be authorized to take steps to enhance the Principal's ability to become eligible for public assistance, should the Principal be headed for a nursing home.
While we always recommend a complete review of a person's estate plan, you might start by taking a look at your Durable Power of Attorney, if you have one. If it was created before 2012, the powers identified above will not be present. And even if it was created after 2012, the powers may not have been included. But consider what has changed in your life, and consider that a Durable Power of Attorney with broader authority for your Agent may be what you now need. If you do not have a Durable Power of Attorney, after a review of how it can help, you may want to add it to your estate planning arsenal.
Of course, a full review of your estate plan is always a good idea. Starting small with just one piece, however, may get you on track for that review. The Durable Power of Attorney may be the key that gets you started.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.