Contact Us Today

Blog Topics

» Elder Law Issues and discussions on topics of interest.

» Estate & Trust Administration Articles of interest to Executors, Trustees and Beneficiaries, particularly in probate and trust matters.

» Medicaid, Income & Asset Protection for long term care Issues and discussions on topics of interest.

» Social Security & Medicare Issues and discussions on topics of interest.

» Special Needs Trusts Key topics to protect a disabled child, grandchildren, family members and others.

» Veterans' Benefits for long term care Learn eligibility for assisted living and home-based waiver programs and other articles of interest.

» Wills & Trusts Protecting your family and yourself if the unexpected happens.

Speaking Events

Fredrick P. Niemann, Esq. was recently the featured speaker in Colts Neck, NJ at a seminar entitled Investments & Estate Planning for Trusts and Wills for High Net Worth Individuals.

» Read about upcoming speaking events

Durable Powers of Attorney for Asset Protection & Life Care Planning

The Value Of A Durable Power Of Attorney

"Sincere, professional, responsive and in touch with my legal needs and requirements. I have been a client for many years and have been very, very satisfied with Scarinci Hollenbeck."

—Paul Brady, Princeton, NJ

» Read more testimonials

The Durable Power of Attorney can be an excellent planning device for most people. It is particularly useful for individuals who are concerned about physical or mental conditions.

The following are the major highlights and benefits of the Durable Power of Attorney (DPA).

WHAT IS A “POWER OF ATTORNEY”?

A Power of Attorney is a document in which you give another person, the “attorney in fact,” the legal authority to act on your behalf. This authority can be limited to a particular asset, a particular transaction or a particular period of time. It can also be general, such that it conveys broad authority to act on your behalf.

HOW IS A “DURABLE” POWER OF ATTORNEY DIFFERENT?

A regular Power of Attorney is only valid for as long as the person signing the document has the capacity to understand its significance and meaning.

There are two types of “Durable” Power of Attorney, either of which ensures its validity even if the person has become incapacitated. These types are:

Effective immediately. This type is effective when signed and remains effective, even if the person becomes completely incapacitated.
Effective upon incapacity. This type becomes effective when and if the person becomes incapacitated.

WHAT POWERS CAN BE GIVEN IN A DURABLE POWER OF ATTORNEY?

The power to handle all of a person’s assets can be conveyed in this document if it contains necessary language. This includes the power to invest and sell assets, to enter into contracts, to collect and recover assets, to make gifts and deal with all types of insurance, to operate or sell a business, to transact banking, to file documents with the State of New Jersey or other governmental agency on your behalf, including the IRS and to handle other tax and trust issues. Alternately, the document can select special areas of authority and delete others.

WHAT ARE THE BENEFITS OF A DURABLE POWER OF ATTORNEY (DPA)?

In many instances, a DPA can avoid the need for a conservatorship or guardianship of the estate. A conservatorship or guardianship involves a court hearing in which one person (the “conservatee” or the “incapacitated person”) is found to be unable to handle his or her own affairs, and another person (the “conservator” or “guardian”) is appointed to handle their affairs. A conservatorship or guardianship can be an expensive process (in excess of $5,500), and ongoing court supervision is required.

A properly drafted DPA satisfies the need for “surrogate management” by having such a person appointed while the giver of authority still has capacity. No court proceeding is required. This document can be considered one of the most important documents to have.

SHOULD “FORM” DURABLE POWERS OF ATTORNEY BE USED?

Forms are available but may prove to be inadequate for your needs. If they are used, they should be used only after advice from an attorney with an understanding of their uses and limitations. There are a number of reasons for this warning:

These documents convey an enormous amount of authority. An “attorney in fact” or agent typically has virtually complete control over a person’s assets. As such, it is frequently necessary to go beyond the forms to build in protections for the signing person.
Special needs, concerns and limitations often necessitate the drafting of a personalized document.
Some forms require the person to choose from various options that are included in the document, but do not explain the existence or implications of such choices.

GET HELP FROM AN EXPERIENCED ESTATE & PROBATE ATTORNEY

An experienced estate and probate attorney can assist you. The Durable Power of Attorney, if properly drafted, may be one of the least expensive forms of insurance a person can buy. Perhaps even more important than the documents that discuss how we want things distributed upon death, the Durable Power of Attorney specifies how we want things done while we are still alive, but unable to manage our affairs. Anyone who is age eighteen or over can sign such a document.

To speak to an attorney, call Fredrick P. Niemann, at 888-800-7442 or e-mail him at info@njelderlawcenter.com to set up an office consultation at your convenience.