May

15

2024

Why You Should Have A Statutory Durable Power Of Attorney

Posted by: Adair M. Buckner

An important component of an estate plan is a statutory durable power of attorney, often called a general power of attorney. This power of attorney allows you to name an agent or agents to carry on business-type activities on your behalf if, for any reason, you are not able to do so yourself.

If you become incapacitated or incompetent to the extent you cannot take care of your own affairs, it is extremely important that you have designated a person, who is called your agent, to take care of things such as your banking, real estate, personal property, and like matters. A medical power of attorney is a separate document that allows an agent to make medical decisions on your behalf if you are not able to do so yourself, as discussed in this blog.



The Consequences Of Not Having A Power Of Attorney

People don't like to think about the possibility of becoming incompetent or otherwise unable to handle their own affairs. Or, they may have trouble deciding who they would want to serve as their agent if they do lose competency. So, they procrastinate until it's too late. Having a durable power of attorney drawn up sooner rather than later can be critical.

We all have numerous family members or friends who have developed dementia, a debilitating disease, or the simple inability to deal with more complex business issues. They can no longer carry on their own affairs. So, this is a very real issue for a large part of our population.

The most important reason to have this power of attorney drawn up is that, if you become incompetent or incapacitated, and you have no spouse, or the third party you're dealing with will not allow your spouse to act on your behalf, the only option available at that point to have someone conduct your affairs for you is to have a guardianship established.

power-of-attorney-avoid-guardianship
The Downsides Of Guardianship

Guardianships are extremely expensive, complicated, and time-consuming. In addition to the court filing fees, service fees, and attorneys fees, the applicant for the guardianship must have an attorney ad litem appointed to represent the interest of the incapacitated person, who is called the ward. 

The guardianship application process, even if uncontested, will likely cost at least $5,000. If it is contested, meaning that more than one person seeks to be appointed or another interested person disputes that a guardian is needed, the costs can easily go to $10,000 or more. The attorney ad litem fee may be several hundred to a thousand or more in additional fees.

One other drawback of failing to draw up a general power of attorney is that you may have no choice about who is appointed your guardian. The court will follow a statutory order of persons who have precedence to be appointed. You may love these people dearly but have no confidence in their ability to manage your financial matters. In a general power of attorney, you retain the ability to say who you want to act as your agent.

The Importance Of Drawing Up A Power Of Attorney Now

For the reasons outlined above, a guardianship for an incapacitated or incompetent person should be avoided if possible. The simple way to do this is to have the statutory durable power of attorney drawn up before there is any question about your competency. Once competency is lost, you cannot draw up your own power of attorney. The cost for preparation of this document will likely be in the range of $350-$500. Obviously, this is substantially less than the cost of a guardianship proceeding.

What are you waiting for? Do not procrastinate. Clients with loved ones who have become incompetent frequently tell me there were plans to have a power of attorney drawn up before competency was fully lost. Waiting too long can be disastrous.

If you would like to talk about drawing up a statutory durable power of attorney in the state of Texas, please call Adair M. Buckner for a free initial consultation.*

Get A Free Consultation

*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

** This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal, or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.

TESTIMONIALS

Mrs. Buckner did a full estate plan for me. Her work was excellent, her communication was great, and the price was reasonable. I would highly recommend her for your estate planning needs.

- Brad -

When my husband passed away, I contacted the attorney that we had used to prepare our wills but was unhappy with his attitude of indifference. I discovered Adair Buckner and all of my issues were resolved. Adair is professional, compassionate, and extremely knowledgeable. She saved me a large amount of money by processing my will in the appropriate manner to best suit my situation.

- Susan -

We appreciate Adair Buckner’s professional and personable service. Our legal needs were met promptly and succinctly. We would not hesitate (and do!) recommend her to our family and friends.

- Kristine -

Adair drew up a beautiful power of attorney and Will for my father in a timely manner. I highly recommend that you use her. She’s a wonderful lady.

- Hiram -

This was as painless as it gets to hire an attorney in Amarillo Texas. Handled all the estate needs and never had to appear in court. You won't find any better and I use Attorneys quite often in my line of work.

- AAA Land Records of Oklahoma Inc -

It was way past time to finally get our Wills completed. This was something that was extremely complicated for us, but Adair and her assistant never made us feel like we were bothering them...and we (I) bothered them...a lot! Things were explained to us in a way that we could understand easily. Extremely professional and knows her stuff!

- Darla -

I was meeting with a financial advisor who encouraged me to finish my Will. He offices next door to an Estate Attorney, and voila, 'one-stop shopping]! Adair and her assistant Pennye made completing my estate planning fun, easy, and pleasant. I wholeheartedly recommend Adair Buckner!!

- Margo -

Trying to get our LLC changed over after moving to Texas was complicated, but Adair Buckner made the process so simple! We just gave her the details, and she handled everything quickly and professionally. Thank you, Adair, for making this part of our move stress-free!

- Barbara -

Adair is very professional. She cares about her clients and explains everything very well. She makes you feel like a friend.

- LaDonna -

Losing my Mother and being appointed as Executor of her estate was overwhelming. Adair was very professional and personable. She handled and processed the estate with ease and kindness.

- Lydia -