July 2006
Volume 2, Number 4
Table of Contents

The Durable Power of Attorney

By Kenneth A. Vercammen  

A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf.  In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself.

The term "durable" in reference to a power of attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated.  A principal may cancel a power of attorney at any time for any reason.  Powers granted on a power of attorney document can be very broad or very narrow in accordance with the needs of the principal.

Why is Power of Attorney so important?
   
Every adult has day-to-day affairs to manage, such as paying the bills.  Many people are under the impression that, in the event of catastrophic illness or injury, a spouse or child can automatically act for them.  Unfortunately, this is often wrong, even when joint ownership situations exist.

The lack of properly prepared and executed power of attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs.  All states have legal procedures, guardianships or conservatorships, to provide for appointment of a Guardian.  These normally require formal proceedings and are expensive in court.  This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action.  The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings.  This can be slow, costly, and very frustrating.
   
Advance preparation of the power of attorney can avoid the inconvenience and expense of legal proceedings.  This needs to be done while the principal is competent, alert and aware of the consequences of his/her decision.  Once a serious problem occurs, it is too late.
   The Power of Attorney can be effective immediately upon signing or only upon disability.  Some examples of legal powers contained in the Power of Attorney are the following:
   
1.  REAL ESTATE:  To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to any real estate or lands in which I have an interest, including ________ [real estate]

2.  ENDORSEMENT AND PAYMENT OF NOTES, ETC.:  To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances. To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent.

3. MEDICAL RECORDS ACCESS:  To be able to access my medical and hospital records under Federal Law HIPAA.

4.  STOCKS, BONDS, AND SECURITIES:  To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities.

5.  CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed.

6.  BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.:  To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit.  To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other  institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions as set forth in section 2 of P.L. 1991, c. 95 (c. 46:2B-11).

7.  TAX RETURNS, INSURANCE AND OTHER DOCUMENTS:  To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing.

8.  GIFT GIVING POWERS:  To make gifts in amounts which my agent in his sole, absolute and unfettered discretion shall deem appropriate in any given year on my behalf.
   You should contact your attorney to have a Power of Attorney Prepared, together with a Will, Living Will and other vital Estate Planning documents.

Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton.  He often lectures for the American Bar Association and New Jersey State Bar Association on personal injury, criminal / municipal court law and practices to improve service to clients.   He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters.  He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, Probate hearings and contested administrative law hearings.

 

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