Comprehensive Durable Power Of Attorney

If you became incapacitated, who would pay your bills, protect your assets and obtain long-term care and government benefits for you? The most common answer is: “I have joint bank accounts with my spouse or children, so they can handle all of that.” While that mechanism works for withdrawing money or accessing an account, it does not give that person the ability to discuss your bills, including medical bills, with a third party. They cannot engage an attorney on your behalf if a legal matter arises, and in terms of children, they cannot sell your house for you if you are placed in a care facility. This is where a comprehensive durable power of attorney is imperative. It allows you to select an agent or agents to take care of your assets while you are alive but unable to act on your own. It also imposes fiduciary duties on that agent or agents so that they cannot, in the simplest of terms, “clean out” your bank account or take your house for their own purposes.

If you listed one of your children as a joint owner on a bank account, although they have access to your funds, he or she will also receive all of the funds in that joint account upon your death as the surviving owner, and he or she has no obligation to share with your other children. Joint accounts often serve to disinherit children not named on the account, even when that is not the intention. In the case of joint accounts, the Maryland multi-party account statute rules and not your will.

If you do not have a comprehensive durable power of attorney and you are unable to take care of your finances because of incapacitation, then a family member would need to petition the court for guardianship of your property. This is time-consuming and expensive. The court decides who will be appointed as guardian of your property and it may not be the person or family member who you would have chosen. If you have a power of attorney that was created prior to October 1, 2010, you should have an attorney review your power of attorney to make sure that it is valid, as the statutory requirements of a power of attorney were modified on that date.

For more information or questions regarding powers of attorneys or estate planning, call Tara Frame at 410-255-0373.