Important Considerations When Creating a Power of Attorney

Executing a Power of Attorney (POA) is a significant legal step that requires careful thought and planning. In today’s complex legal landscape, understanding how these documents work is essential to protect your interests. This article explores key aspects of Powers of Attorney, common mistakes, and how to avoid them.

Powers of Attorney: Understanding Scope and Types

Many people are unfamiliar with the different types of Powers of Attorney and when to use them. Understanding these variations is crucial to ensure your POA aligns with your needs. The three main types to consider are:

• General Power of Attorney: Grants broad powers over your financial and legal matters.

• Special Power of Attorney: Limits the agent’s authority to specific transactions or for a specific time period.

• Durable Power of Attorney: Remains in effect even if you become incapacitated.

It’s essential to understand these distinctions thoroughly so you can make informed choices that align with your personal goals.

Selecting an Agent: Looking Beyond Personal Relationships

Choosing the right agent is a critical aspect of creating a Power of Attorney. While you may instinctively turn to immediate family members, it’s important to consider:

• Financial Knowledge and Responsibility: Does the person have the ability to manage your affairs responsibly?

• Geographical Proximity and Availability: Are they close enough and available to act when needed?

• Potential Conflicts of Interest: Could their interests conflict with yours?

• Willingness to Serve: Are they willing to take on this responsibility?

It’s also advisable to name successor agents in case your primary agent cannot serve.

Defining the Agent’s Authority Clearly

Ambiguity in your agent’s authority can lead to problems and even litigation. It’s important to clearly define:

• Financial Accounts: Specify which accounts your agent can access and manage.

• Real Estate Transactions: Set boundaries on what your agent can do regarding your property.

• Investment Decisions: Outline any limitations on investment activities.

• Healthcare Decisions: If relevant, define the scope of authority over medical decisions.

• Gifting Permissions: Specify any permissions or restrictions on making gifts on your behalf.

Regularly Reviewing and Updating Your POA

Your Power of Attorney should be periodically reviewed and updated to reflect changes in your circumstances. Consider reviewing your POA when:

• Major Life Events: Marriage, divorce, birth of children, or death of a loved one.

• Changes in Financial Circumstances: Significant gains or losses in assets.

• Relocation: Moving to a different state or country, as laws may vary.

• Legal Changes: Updates in laws that could affect the validity or effectiveness of your POA.

The Importance of Legal Counsel

While many do-it-yourself POA templates are available, these complex documents require professional legal advice. An experienced attorney can ensure:

• Compliance with Local Laws: Making sure your POA meets all legal requirements in your jurisdiction.

• Proper Execution: Ensuring the document is correctly signed, witnessed, and notarized.

• Alignment with Estate Planning: Integrating your POA with your overall estate plan.

• Risk Reduction: Using precise language to minimize misunderstandings or disputes.

Conclusion

Creating an effective Power of Attorney involves navigating many details and potential pitfalls. Working with an attorney can help you carefully structure and execute your POA to best protect your interests.

This article is for informational purposes only and does not constitute legal advice. Please consult a qualified attorney for advice specific to your situation.

2024 Copyright Alfred R Rego Jr

 

#EstatePlanning #PowerOfAttorney #LegalAdvice

The Importance of Health Care Directives- an Estate Planning Tool.

We often find ourselves planning for the future, whether it's our education, career, or retirement. But there's one aspect of planning that may overlooked, and that's how we want to be treated in various medical situations, especially at the end of our lives.

The Importance of Health Care Directives

Health care directives, also known as living wills, medical directives, health care proxies, or advance health care directives, allow us to express our preferences about medical treatment in extreme situations when we cannot communicate. These documents are not just legal formalities; they are expressions of our values, our beliefs, and our desires.

Living Wills

A living will is your written expression of how you want to be treated in certain medical circumstances. It may permit you to express whether you wish to be given life-sustaining treatments if you are terminally ill or injured, or whether you wish to be provided food and water via intravenous devices ("tube feeding"). It's a document that speaks for you when you cannot speak for yourself.

Health Care Proxy

A health care proxy, sometimes called a "health care surrogate" or "durable medical power of attorney," allows you to appoint a person to make medical decisions for you if you are unable to express your preferences. This person becomes your voice, carrying out your wishes as you have outlined them.

Why Have Health Directives?

The purpose of these documents is to ensure that your preferences are made known. Physicians prefer these documents because they provide a written expression from you as to your medical care. They also designate the person the physician should consult concerning unanswered medical questions.

But it's not just about the medical professionals. These documents express your wishes to your family so that they don't have to guess what you would want. Making your wishes known in advance prevents family members from making hard choices at what likely will be one of the most stressful times in their lives.

Organ and Tissue Donation

In many states, including Rhode Island, you can include in your advance directive your preference to become an organ or tissue donor at the time of death. This decision can be a tremendous help to those in need, and it's one more way you can make your values and wishes known.

Communication is the Key

Many people prefer to keep their legal documents private. But with end-of-life issues, communicating your wishes is essential. Talk to your physician, your family, and the person you appoint as your health care proxy. The more these individuals know, the easier it will be for them to fulfill your wishes.

Conclusion

Planning for our future is a responsibility we all share. And that includes planning for the unexpected. Health care directives are not just legal documents; they are a reflection of who we are and what we believe. They are a way for us to speak when we cannot speak for ourselves.

I encourage you to take the time to consider these directives, to discuss them with your loved ones, and to put them in place. It's a decision that reflects not just our individual values but our collective responsibility to one another.

Things to Know Before Declaring Bankruptcy

Things to Know Before Declaring Bankruptcy.

Declaring bankruptcy is a legal process that can help people who are struggling with overwhelming debt get a fresh start. However, it is important to understand what bankruptcy entails before you file. This blog post will discuss the basics of bankruptcy, including the different types of bankruptcy, what debts can be discharged in bankruptcy, and the impact of bankruptcy on your credit score.

What is Bankruptcy?

Bankruptcy is a legal process that allows individuals or businesses to get a fresh start by discharging, or eliminating, certain debts. This can help people who are struggling with overwhelming debt to stop debt collectors from contacting them, get rid of their legal obligation to pay off their debts, and prevent the termination of their utility services.

Types of Bankruptcy for individuals

There are two main types of bankruptcy: Chapter 7 and Chapter 13.

Chapter 7 bankruptcy is the most common type of bankruptcy. It is a liquidation bankruptcy, which means that you will sell off most of your assets in order to pay off your creditors. If you have enough equity in your home or other assets, you may be able to keep them, but you will have to pay off the debt that is secured by those assets.

Chapter 13 bankruptcy is a reorganization bankruptcy. This means that you will create a repayment plan that allows you to pay off your debts over a period of time. You will be able to keep your assets, and you will not have to pay off as much of your debt as you would in a Chapter 7 bankruptcy.

Chapter 13 bankruptcy can be a good option for people who have a steady income and who are able to make regular payments. It can also be a good option for people who want to keep their assets.

Debts That Can Be Discharged in Bankruptcy

Not all debts can be discharged in bankruptcy. Some of the debts that cannot be discharged include:

* Tax debt
* Child support
* Alimony
* Student loans
* Debts that were incurred through fraud or intentional injury

Impact of Bankruptcy on Credit Score

Bankruptcy can have a negative impact on your credit score. The length of time that the bankruptcy will stay on your credit report will depend on the type of bankruptcy you file. A Chapter 7 bankruptcy will stay on your credit report for 10 years, while a Chapter 13 bankruptcy will stay on your credit report for 7 years.

When to Consider Bankruptcy

Bankruptcy is a serious decision, and it should not be taken lightly. If you are considering bankruptcy, it is important to speak with an experienced bankruptcy attorney to determine if it is the right option for you.

Conclusion

Declaring bankruptcy can be a helpful tool for people who are struggling with overwhelming debt. However, it is important to understand the implications of bankruptcy before you file. This blog post has provided you with some basic information about bankruptcy, but it is not a substitute for legal advice. If you are considering bankruptcy, you should speak with an experienced bankruptcy attorney to get the best possible advice.

Here are some additional things to keep in mind when considering bankruptcy:

* Bankruptcy will stay on your credit report for up to 10 years.
* You may have difficulty getting a loan or a job after filing for bankruptcy.
* You may have to pay taxes on any debt that is discharged in bankruptcy.

#declaring bankruptcy, #bankruptcy, #regolaw, #Alfred R Rego Jr, #Rego & Rego

Landlord's Return Of Security Deposits.

Landlord's return of security deposits.

In Rhode Island, a landlord who fails to comply with the law concerning the return of a security deposit within twenty days can be be assessed a damage payment of twice the amount illegally withheld plus attorneys fees. R.I.G.L. 34-18-19.requires the security deposits be returned within twenty days "after" the tenant gives proper notice, moves out, returns the key and provides a forwarding address.

When returning the deposit, the landlord must send the tenant an itemized notice listing any legal deductions withheld. These deductions can be for unpaid - outstanding rent and physical damages other than ordinary wear and tear.

A tenant's failure to provide a forwarding address or providing notice that he or she is vacating will be argued by the landlord in defense of punitive damages. When does the twenty day notice period begin? When did the landlord become aware that the tenant vacated? Written notice is important!

Regardless, the security deposit after deducting for damage and back rent, has to be returned.

In short, if a tenant fails to provide notice or a forwarding address, he or she will forfeit any right to recover statutory damages and attorneys fees from their landlord.

To ignore estate planning for small estates can be a huge mistake. A small estate may not incur estate taxes, but we all will incur funeral costs, medical expenses, loan and credit card debt obligations, state and local taxes and administration fees that are applied during estate settlement.

Debt concerns can include a mortgage, car loans, unpaid school loans and recurring bills. Failure to plan can result in liquidation of assets, sometimes at a discount to cover obligations. Modest estates can pose planning challenges because liquidity may not be there.

Some planning tools to consider:

• joint ownership
• beneficiary designation
• Will
• Living Trust
• Durable Power of Attorney
• Life Insurance
• Long Term Care Insurance
• Reverse Mortgage (if over age 62)

Some issues everyone should address:

• avoid family disputes - Will and/or trust considerations
• plan of succession - who gets what and when
• election of executor and/or guardian for minor children
• update beneficiary designations on policies and joint accounts or accounts of convenience
• life, disability and long term insurance considerations


Making sure all family members understand your wishes can go a long way in preventing post-death battles and hurt feelings. Just as important, you should review your estate plan every few years or when significant changes occur. Just as important the above considerations have to be coordinated in order to void inconsistencies.

Living Will v Heath Care Proxy v Medical Directives are all different documents…?

The most common types of advance directives are the living will and the durable power of attorney for health care (in Massachusetts a ”health care proxy”).

These directives allow you to say you don’t want to be resuscitated, you want to make organ or tissue donations, and desired quality of life and end of life treatments you don’t want to receive.

You also can include instructions for other situations, such as if you are unconscious for a short time, or impaired by Alzheimer disease or a similar condition.

I should note that choosing not to have aggressive medical treatment is different from refusing all medical care. A person can still get antibiotics, nutrition, pain medicines, and other treatments, but the goal of treatment becomes comfort rather than cure. It is important to make clear exactly what you want and don’t want.

The living will is a formal legal document that must be written and signed by the patient. Rhode Island does have a model form and the document must be witnessed.

The witnesses cannot be spouses, potential heirs, doctors caring for the patient, or employees of the patient’s health care facility.

A living will can include:
• the use of equipment such as dialysis machines or ventilators
• do not resuscitate orders, DNR and use of CPR
• tube feeding - fluids and/or nutrition
• treatment for pain, nausea, comfort care
• whether you want to donate your organs

A living will is more limited than a health care power of attorney – health care proxy. Both apply when you are unable to speak for yourself, but the living will takes effect only if you are terminally ill or permanently unconscious.

In a durable power of attorney for health care, you name a person to be your agent (proxy) to make all your health care decisions if you become unable to do so. The agent should be someone you trust to carry out your wishes.

Even though your living will attempts to set out your wishes, such documents can never cover every circumstance. The durable power of attorney for health care is there to fill in gaps for situations not covered or in case your living will is invalidated for any reason.

Typical rights and/or duties of an agent would include:
• providing medical decisions that are not covered
• enforcing healthcare wishes in court if necessary
• hiring and firing doctors and medical workers
• having access to medical records
• visitation rights

You should give a signed copy of both to your doctor and your agent.

What you should know about premarital - postmarital agreements?

A prenup (premarital agreement) establishes property and financial rights of each spouse in the event of a separation or divorce. These contracts are used to protect assets of wealthy spouses but can be used to protect assets slated for children of a first marriage.

If you are already married, a postmarital agreement can be entered into.

What would you like to happen if you separate or divorce, or if either of you dies or are seriously injured while married? If you are unable to agree, how would you like to resolve your differences - mediation or arbitration?

Some issues to considered
• Property or investments acquired before marriage
• Assets acquired after marriage
• Contributions during the marriage
• Income
• Debts acquired before and during the marriage
• Payment of joint living expenses
• Charing for children you already have or may have in the future
• How to handle illness, aging and retirement

However, pre or post marital agreements have to be done with a degree of formality to be valid.

* They need to be in writing to be enforceable.
* They must be signed before the marriage.
* They need to be read and reviewed, but if with the aid of independent counsel.

Reasonable time is needed for review and consideration (last minute signing before the wedding would probably be invalidated by a court.)

Invalid or illegal clauses or incomplete or false financial disclosure will also probably invalidate the agreement.

Unconscionable contracts are generally invalidated by the courts, pre or post marital agreements are no exception.

It is important to speak to an attorney - most offer free initial consultations. With fifty percent of marriages ending in divorce, securing you and your children's personal assets should be paramount.

#prenup #postnuptial #mediation #premarital