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Why You Need A Power of Attorney

Many people may think that a will is all they need for their estate planning. For certain purposes, those people may be correct. A will may fit their needs for the transfer of assets at death. But unfortunately, often other matters must be taken care of prior to death.

For example, an elderly man has a wife, a son, and a daughter. The wife passes away. The man owns and the elderly man is unable to care for himself due to Alzheimer's disease. The man has a will from 20 years ago, but no power of attorney. His children take care of him, but they begin having trouble handling his affairs because nobody is authorized to do so.

What are the children to do?

When an individual is not of sound mind, he is unable to execute a power of attorney authorizing another to act upon his behalf. The answer is the children must seek a guardianship for their father.

Obtaining a guardianship on the back end is much more complicated than executing a power of attorney on the front end. The process of seeking a guardianship includes petitioning the court, putting certain individuals on notice of the guardianship petition, a court's appointing a guardian ad litem to represent the incapacitated individual, attending a hearing, and obtaining a court order. Then after the guardianship is obtained, the guardian must periodically report to the court as a protection of the incapacitated individual.

In contrast, a power of attorney may be executed in the same signing ceremony as a will. The power of attorney may grant an individual the same powers of a guardianship, but going to court will be unnecessary. In fact, the individual executing the power of attorney may decide how their designated representative will become authorized to act and what limitations such representative will have in acting on the individual's behalf.

In sum, a power of attorney is a much more convenient, and cost efficient means of taking care of one's property and person.