The Role of Power Of Attorney in Estate Planning
A power of attorney is under a separate statute in the Colorado Statute. A power of attorney, which is actually naming someone as your agent or your attorney; you could sign a document on behalf of someone as their agent. Let’s assume I Suzie Smith am appointed as John Smith’s agent, I would sign that document, John Smith by Suzie Smith attorney-in-fact. It’s really a concept that has been around for a long time. A power of attorney empowers an individual and there can be two kinds. There are typically going to be two separate documents now in every jurisdiction that I’m aware of, certainly in Colorado, there’s two.
There would be a financial power of attorney which would give the agent or the attorney-in-fact the power to deal with all of the individual’s assets including real estate, banking. Colorado has a statutory power of attorney though that allows an individual to check boxes and choose which power they want to give their agent. There is one that’s called a standing power of attorney that the moment you sign it, the individual you have named as the agent would immediately be able to go out and sign on behalf of the principal, the person who created the document and there’s what’s called a Springing Power of Attorney, which stands for the concept that the agent would not be able to act until there was a standard met so typically that’s going to be when there is one physician or two physicians who have certified that the principal is no longer able to make their own financial decisions. It’s only until then that the agent would be able to step in and deal with the financial affairs of the principal.
One other myth, a power of attorney does not survive death. The moment an individual passes away, the power under that agreement is extinguished. Technically people should not continue to sign checks or do anything on behalf of the decedent once that person is passed away. I can smile every time somebody calls me in and says, “I’ve been signing my dad’s checks”, I wish you hadn’t told me that because then literally we have to tell them, “No you cannot do that anymore.” That document no longer has any authority the moment that person dies.
How Long Does the Whole Estate Planning Process Actually Take?
It should take only probably about 90 days. If you have a client who’s reacting and responding and you’re following up in a normal situation to set up a plan that should be the timeframe. It can be done as quickly as 45 days but I would say the 90 days are more realistic timeframe.
What Should I Bring When Meeting with An Attorney??
One of the things that attorneys typically do, and this is always a good starting point is before you come in, you should have been sent some type of a will questionnaire, because that, at a minimum, provides you with ideas to think about. You will see a variety of questions, we do not have a lot of philosophical questions in our questionnaire because we think that’s easier to talk about when the client comes in. But we do get their basic information and we find out who their family is and ask questions about who they would want to appoint to carry out some of these roles, who would be guardian and even at what ages the children would receive money.
Secondly we then require the client to make a list of their assets and how that property is titled and owned so when we’re setting up the plan, we can make sure that once the documents are executed, that all of their assets are coordinated with the plan. So, typically the planning isn’t done when the documents are signed, the planning is really completed when all beneficiary designations and account titling is done that matches the plan that we’ve drafted.
Are There Any Witnesses Needed During this Process?
A law firm will normally always provide the witnesses. What is required in Colorado law is that most of the documents require a notary or two witnesses but our firm is following what most practitioners do, we still have a will notarized and witnessed. We have the living will and the medical power of attorney notarized and witnessed by two independent witnesses, and then the power of attorney only needs just a notary.
Why is it Hard for People to Typically Understand this Process?
What is hardest about people even understanding the probate process is they have read too many articles and listened to too many friends at cocktail parties who really don’t understand how it works. So our job is to get enough confidence reposed in our abilities so that we can sort of get them to put aside some of the myths that they’ve heard or read about in the outside world.
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