Decide if you want your agent’s powers to start now, or later

Just as important as what your agent can do is when they can do it.  A power of attorney can give your agent power right away, or hold off until a future event or condition happens.  We’ll explain the benefits and drawbacks with either option.  Your decision will depend on who you will name as your agent and your personal circumstances.

For example, take a look at the following scenarios:

      ●    Illness, Medical Conditions, or Accidents

You can have your power of attorney go into effect only if you lose the physical or mental capacity to make financial decisions, such as after an illness or accident. 

You may want to include a requirement that a doctor first determine the incapacity before your power of attorney can be used.  On the other hand, this delay can work against you in an emergency when a decision needs to be made immediately.  We’ll explain your options and take all of this into account when preparing your power of attorney. 

      ●    Temporary Absence

If you go on vacation without your kids, you may want to set up a special power of attorney for the time you’ll be away.  Even if you don’t have kids, if you’ll be gone for a long time you may need someone to manage your finances while you’re out of the country.

      ●    Spouses and Domestic Partners

Many spouses and domestic partners decide to make their powers of attorney effective immediately.  If you’re married or in a registered domestic partnership, you probably own most of your property together.  Even so, some transactions require authorization from both of you.  Also, some of your money and property may be in your name only, so you need the power of attorney to give your spouse access those assets if there’s an emergency. 

Make sure your power of attorney is done right

With years of experience behind us, your lawyer at San Diego Law Firm will create a power of attorney that follows California law and avoids the pitfalls of generic or poorly written powers of attorney.  That way, you can be much more confident that your power of attorney will be accepted by banks, investment firms, and others. 

An alternative to “Conservatorships”

Remember that if you lose capacity in the future, by creating a power of attorney you can decide who you would like to manage your finances.  This means that in many situations, a good power of attorney can help you avoid the need for a “conservatorship” down the road.  A conservatorship would require that a loved one go to court so that a judge can appoint someone to manage your finances and healthcare.

A properly written power of attorney – along with a similar document for your medical decisions (called an “advance health care directive“) – can help minimize family conflict.  While conservatorships can be necessary for some, many times a power of attorney is appropriate and can avoid the expense and time involved with creating a conservatorship in court. 

Also keep in mind that a living trust and a guardianship can do more than you think, because both can help you plan for possible incapacity.  Don’t miss your opportunity to plan for the future.  Reach San Diego Law Firm experienced estate planning lawyers at (619) 794-0243.

Your choice of guardian is one of the most important decisions you’ll make in your will, so how do you decide?  In “How to Choose a Guardian,” mother of three Denise Oliveri proposes that you figure this out by answering five questions.  To decide who will be right for the job, she suggests you evaluate age and health concerns, moral and educational values, financial ability to care for a child, and whether your child would have to move away.

Property & Money Matters

Splitting up responsibilities – Sometimes you’ll find it’s best to name different people to handle the parenting and the finances.  This will depend on the personalities, schedules, and skills of those who you would want to care for your child.  In this case, you can name a “guardian of the person” to raise your child, and a “guardian of the estate” to manage money and assets left behind for your child. 

Decide how the inheritance should be handled – Remember that you may only want certain property to be gifted under your will if your chosen guardian accepts the appointment in court.  That way, you can make sure these resources are available for your kids even if the person you nominated turns down the guardianship.  We’ll ensure you take this and similar considerations into account so that your will matches your wishes.  Another option is to create a living trust that names a trustee to manage finances.  This can be a better option for you and your kids, and give you more control over how and when money will be spent. 

Making sure your wishes are carried out

Choose alternates – In the event the guardianship becomes necessary later on, what happens if the person you choose can’t act as guardian any more?  You can plan for this possibility by naming alternate guardians.  This gives you greater security that your child or children will be cared for by someone you’ve chosen.

Think your choices through in your will – If the person you’ve chosen is comfortable with taking on the role of guardian and accepts, then your next step will be to include your guardianship decisions in your will and the other parent’s will.  If you’ve chosen a couple to act as co-guardians, we’ll prepare your will to make sure it accurately reflects your intentions.  For example, if the couple later divorces or one spouse dies, will you still want either spouse to be your child’s guardian?

Don’t leave it all for the judge to decide

As long as you’ve nominated your guardian in a valid will, then the chances are the court will appoint the person you’ve chosen as guardian.  The court will only deny the appointment if it’s necessary to protect your child’s best interests.  You may recall Michael Jackson’s mother was approved as guardian to his three children, as reported by CNN, despite concerns of her age.

If you didn’t name a guardian in your will, then the decision will be left completely in the judge’s hands.  The court will try to make the best decision for your child, but the appointed guardian may be different from who you would have wanted.  Remember, it’s not enough to just come to an informal agreement about guardianship with your family and friends.  Your nomination has to be properly made in your will. 

Our experienced wills, trusts, and probate attorneys are here to help you understand guardianships and its responsibilities.  We’ll also prepare a will and living trust that’s comprehensive enough to truly carry out your goals.  Don’t miss a chance to help ensure your children’s security and well-being will be protected.  Contact San Diego Law Firm at (619) 794-0243.