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Law Offices of Ronald W. Rutz
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April 10, 2001: Things to Keep in Mind When Reviewing Estate Documents

Q: I brought my documents to you for review. What do you think?

A: Your Will and Living Will look fine. You have your asset list to help your Personal Representative identify your assets, advisors such as the CPA and a stock broker, and have listed where documents are located. But like most people I see, you do not have a Durable Power of Attorney (or often, the Power is inadequate).

Now that you are married (but this applies to single people as well), there is no one with the legal authority to step forward and take care of things for you without a Durable Power of Attorney ("Power"). The need for a Power would include not only disability or incapacity, but also times when you are away traveling or maybe when you just do not want to deal with someone like that next door neighbor.

Without a Durable Power of Attorney, it would be necessary to go to Court and have a Conservatorship set up. That would take time, be expensive, require reports, a bond and other administrative red tape, and places your affairs under the scrutiny of the Court.

A Durable Power of Attorney allows a person to stay out of Court, minimize expenses, select his or her own agent and any back up agents, and provide the necessary authority to act. And the principle - the one granting the Power - can still revoke the agent's authority at any time.

I prefer to do a "comprehensive" Power that permits any kind of decision to be made - from medical to personal and business. Usually four originals are signed so that if we are forced to leave an original, such as with a bank or title company, there will still be executed originals in reserve in case the principal does not have the legal capacity to sign new ones. A primary, and preferably a backup, agent should be listed. And finally I like to include legal descriptions.

I run across people who refuse to sign a Power because they fear that the named agent will abuse his or her position. But remember that it is a criminal act for an agent to use the Power for the agent's benefit. If a principal has any doubt as to the character of a potential agent, then that person should not be named. There is always someone that is trustworthy (pastor, CPA, attorney, trust company) who can be used.

As an advisor in weighing the need for a Power against the chance of abuse of that power, I strongly urge having a Durable Power of Attorney in place. No one can predict when it may be needed. And if you missed it, read the series of articles about guardians and conservators that ran in the Denver Post during the week of April 8, 2001, to see the possible abuses that are present if the Court is involved. The possibility of abuse is present either way, so I would suggest taking control and doing a Power of Attorney.

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