Monthly Archives: September 2014

What type of capacity is needed to sign a power of attorney?

If you are going to need help with your affairs and feel like a power of attorney is appropriate, it is best to sign one sooner rather than later. In order to have a valid power of attorney, the person signing it must have contractual capacity, that is, a person must be able to understand, at the time the contract is executed, the nature of the contract and its effect.

Many times I get calls from people worried about relatives who do not have their affairs in order. If the relative cannot understand what a power of attorney is (or can’t sign up for an insurance policy or buy a car), then it is probably too late to go in that direction. In that case, a guardianship or conservatorship (or both) may need to be established, which is usually more complicated than simply signing a power of attorney.

I will discuss guardianships and conservatorships, which are alternatives to powers of attorney, in a different post. However, don’t delay seeking out advice if you think you are going to need help with your affairs!

Important note: Nothing in this post is intended as legal advice, and I am not your attorney just because you are reading this. If you have any questions, contact a qualified attorney.

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Durable Powers of Attorney

What is a durable power of attorney?

A power of attorney is a fundamental estate planning document. It allows you to authorize another person, called an attorney in fact, to act in your place. Usually a power of attorney has a long list of things that your attorney in fact can do for you. If it is durable, it means that it is effective even if your are disabled or incapacitated. In South Carolina, a power of attorney must contain special language in order to make it durable. Most forms used by attorneys that I know contain this language.

The power of attorney is possibly the most powerful document someone can sign. It can be drafted to allow someone to do everything you can do. It is important to go over the ramifications of this with your attorney. Before signing one, carefully consider the ramifications and any special circumstances you may have. Also, carefully consider who you are picking as your attorney in fact – it is critical to name someone you trust completely.

I will be writing more on this topic later.

One important reminder: this blog is for information only. It is not intended to be legal advice.