An estate plan encompasses all kinds of documents that set into place how and when your assets and estate will be divided upon your passing.
But one of the documents included in the estate plan helps you prepare for a future in which you become incapable of managing your own affairs — either because of distance, illness, or any manner of issues.
This document — the power of attorney — allows you to give someone else the power to manage your affairs until you recover, or until your passing. Most importantly, it allows us to avoid going to court to obtain a guardianship in order to accomplish these important tasks.
A Power of Attorney allows you to name someone who can make decisions and take actions for you with regard to your legal, financial, and personal affairs, while you are alive.
One example would be if you became incapacitated due to an illness. With a power of attorney, the “agent” or “attorney in fact” whom you identify in your POA can quickly step in and pay your bills, run your business, obtain legal assistance, or employ professional help.
While this may seem like a significant power, rest assured that your agent does not have the power to:
POAs are typically written so they are effective the day they are signed. Having this documentation in place in case of an emergency avoids the need for the more complicated process of obtaining guardianship through the court.
There are 3 main types of POAs in New Hampshire. While generally they all work in the same way, there are some important differences.
Another thing to keep in mind is that New Hampshire does not allow the agent named in a POA to award gifts, unless the language of the POA document specifically gives that power.
It’s important to remember that the authority of an Agent under a POA always ends upon the death of the principal. That’s why it’s vital that a POA be just one of many documents involved in your estate plan.
It’s also important to know that while the POA may not have technically “expired”, many third parties are reluctant to accept “older” powers of attorney. They are often concerned that a newer POA may have been executed at a more recent date, superseding the old one. The third party would have no way of verifying that the POA presented is the most current. As a result, we recommend refreshing this document regularly.
To prevent this and other issues from arising, you should periodically meet with your lawyer to revisit your POA and overall estate plan to consider any developments in your personal life or in New Hampshire law.
When choosing an agent, you certainly want to use caution as to who you’re naming because of the significant amount of power over your affairs and your assets that you’re assigning to them. You want to choose someone who is trustworthy, responsible, and reasonably responsive. If you are able to, it may help to name a back-up agent, as well. Please note that your agent must not be a minor or incapcitated themselves.
Many people name their spouses or one or more children as their agent, but be aware that naming more than one person may lead to a disagreement between the two over what’s best for you in an emergency. In some cases, co-agents work well, in others, it can be problematic. A knowledgeable estate planning attorney can help you work through these decisions.
Are you ready to set up a power of attorney? Contact Attorney Candice O’Neil to talk through your best POA options and for help with other aspects of your estate plan.
Waiting to take action after your loved one passes away can put the assets at risk and lead to legal and tax complications. Let us get started helping you through this process by contacting us today at (603) 434-1770 or completing our easy online form.