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Law Offices of Ronald W. Rutz
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June 5, 1998: Durable vs. "Other" Powers of Attorney; Can a Couple Sign just ONE Will?

Q: What is the difference between a durable power of attorney and "other" kinds?

A: A common law power of attorney would end if the maker died, revoked it, or became incapacitated. But incapacity is just the time when a person needs the assistance of his or her designated agent the most. (The rationale was since a person could not control the agent, it was not proper to permit the agent to keep such power.) "Durable" just means that the power of attorney survives incapacity. Many forms use the word "durable." However, the standard format used widely in Colorado uses the word "general" and the word "durable" is not found anywhere in the document. But the paragraph referring to "surviving disability" or "not being affected by disability" turns the document into a durable power of attorney.

Q: Can a husband and wife sign just one Will instead of two?

A: A husband and wife can sign one Will instead of two. In fact, the practice appears to have been very common around the Windsor and Greeley areas during the 1940's and 1950's. But the problem is that the surviving spouse can not normally change the common Will after losing his or her spouse, even if only to add another back-up personal representative or to do something the deceased spouse probably would have agreed with such as to exclude certain beneficiaries who have later proved to be unworthy.

Q: Will a bank account held POD be part of my estate?

A: "POD" means "Payable on Death." Such accounts would be included in your taxable estate and would need to be settled but would not be governed by your Will. The institution involved would need to be contacted and the proper paperwork presented. The proceeds would then be payable to the named beneficiaries and would only come back under your Will's provision if no one named on the account as a beneficiary was able to receive the proceeds. Be careful that your POD beneficiaries are not minors and that you have thought through what should happen to the share of anyone that you named who might predecease you.

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