Q: I'm about to sign POAs with my daughter for both health care and asset management. I trust her. But if she dies...
I'm doing estate planning. If she dies, and I become incapacitated, who decides that I am? And how would that decision be made?
A: There is no one single correct answer to your question. These are issues that an experienced estate planning attorney can help you sort through in the process of preparing customized powers of attorney.
A: Check the forms you are signing. They should have a place for you to appoint a back-up person or two, who can take over if your daughter is unable or unwilling.
For Powers of Attorney this can be a little scary. I always write the Powers of Attorney to only be effective if my client is incapacitated (and two doctors say so). That way, there is not this powerful document floating around.
For asset management you probably want a Living Trust. That allows you to name the succession of trustees who will take over if you are incapacitated while protecting assets from Probate and other government "handling charges".
A: I agree with the other attorney that you should seek competent legal advice. It is dangerous to do estate planning on your own if you lack sufficient legal knowledge.
That said, a properly prepared durable power could be either springing (takes effect upon incapacity) or non-springing (takes effect immediately and survives incapacity). The estate planning attorney can review family dynamics and make a recommendation. If a springing durable power of attorney is chosen, he or she can draft the appropriate triggering mechanism. With regard to your daughter being unable to serve, typically, you will want to have the attorney provide for an alternate agent or agents in the body of the durable power of attorney.
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