Why a Durable Power of Attorney is "Durable" and Why It’s Great For Estate Planning

English common law understood that agents were sometimes needed in business and commerce. The president of Ford Motor Company, obviously, cannot be everywhere. He needs agents to conduct business. Also, someone who is on vacation out of the country and cannot sign a contract might appoint an agent to sign that all-important paper.

But under common law, an agent no longer had the ability to act when the principal was incapacitated (the “principal” being the person who confers the power). If the principal had dementia and could not sign an agreement, his agent could not sign either. His agent could have no greater power than the principal.

Now, if you haven’t figured this out all ready, we will all feel the effects of aging — if we are lucky. The symptoms are well known and do not require explanation. One of those symptoms particularly hard to take is the loss of memory; the ability to think as clearly as when we were younger. While this is not always disabling it is during this natural aging process that people often need help. But the English common law helped little if someone was in a coma, or had dementia.

Here Comes the Durable Power of Attorney.

But because helpless people obviously need the assistance of an agent the most, most jurisdictions now recognize a “durable” power of attorney (abbreviated “DPOA”). A DPOA is “durable” because it is in effect even when the “principal” is mentally incapacitated.

While a non-durable power of attorney merely authorizes the agent to act as long as there is no incapacity, a DPOA resolves this problem by allowing a trusted agent, or nominee, to act even if the principal lacks legal capacity — or in other words when that person cannot legally make decisions on his or her own behalf due to mental disability.

In California, a DPOA must have specific words to be “durable.” It must state, as provided in California Probate Code §4124, that: “This power of attorney shall become effective upon the incapacity of the principal”, or words to that effect.

Some Benefits of a DPOA

A DPOA has specific benefits; in fact, I would go even further to state that nearly everyone with a formal estate plan should consider having one. Here are some of the benefits:

  • Often one may avoid an adult conservatorship. A primary benefit of having a DPOA is that it can often substitute for a formal conservatorship, which is often a costly court proceeding requiring continued court supervision.
    So if a person is under a disability and has a properly worded DPOA, his or her agent may be able to write checks, manage finances, or to take actions with regard to that person’s estate plan (like funding a trust) without specific court supervision.
  • It can be rapidly effective. A DPOA can be effective immediately, or virtually so, without undergoing lengthy proceedings in Probate Court.
  • It should be accepted in other states. A valid DPOA should be accepted in other states. California has a specific statute, Probate Code §4053, which specifically recognizes valid DPOAs executed in other states. However, with some states this may not be the case if the document grants a power not authorized in that state. However (and this “however” is big!): The IRS does not make it easy to recognize an attorney prepared power of attorney. There are hurdles set forth in specific Treasury Regulations [See, for instance, Treas. Reg. §601.503] and IRS practice making it difficult for an agent to sign off on tax forms. [IRS Deskguide (Publication 1514)]. However, a California taxpayer with a valid, properly executed power of attorney should not have any problem with the California Franchise Tax Board signing off on a state tax form.
  • DPOAs are flexible. Specific authorizations, or “powers,” can be added or restricted in the governing agreement. The specific provisions are up to the principal.

Of Course, Not All is Perfect…

While very useful, the DPOA is not perfect by any means. One major problem is the possibility of abuse.

While conservatorships are bulky legal proceedings, there is at least court supervision. The DPOA lacks supervision and abuses have occurred, all too often. While conservators must jump through many legal hoops, there is no active court supervision or “hoops” for an agent under a DPOA. For example, California requires that conservators provide a court approved accounting of their financial activities. It also requires that conservators be bonded. But without a specific court order there are no such requirements for a mere agent.

Court proceedings can be filed, but that is often impractical. While court proceedings can be instituted to compel (for instance) the agent to submit an accounting or to revoke the agent’s authority, this is done all too infrequently. There is a big difference between a court supervised conservatorship, and filing a petition with the court.

In any event, who is going to file the petition with the court? Remember: The principal is mentally incapacitated! Comatose people generally can’t file probate petitions to compel their agents to account!

Sure, there are risks, and they can be addressed somewhat (but not completely) through a well-drafted document and some common sense precautions. A DPOA may not be for everyone. However, everyone should at least consider a DPOA as an element of his or her estate plan. An effectively drafted DPOA can “round out” a comprehensive plan, and fill in the blanks not covered in trusts and wills.

Disclaimer: The information in this article is not legal advice, and the use of it does not create an attorney-client relationship. Any liability that might arise from your use or reliance on this article or any links from this article is expressly disclaimed. This article is not to be acted upon as if it were legal advice, and is subject to change without notice, or may include obsolete or dated information, or information not relevant to your jurisdiction. If you require legal services, you should consult with an attorney.

New Jersey Criminal Lawyers

If you have been accused of a crime or think you might be, you should contact a criminal lawyer immediately. No matter how minor the charge, it’s always beneficial to contact a criminal lawyer. A criminal lawyer is one who specializes in handling criminal defense cases. The role of a criminal lawyer is to represent anyone who commits a crime in order to prove his or her innocence. A criminal lawyer with substantial experience and expertise in this field can work on strategies to cleverly cross-examine the prosecution witnesses to prove your innocence in the case. And, in case of extreme situations, an expert criminal lawyer can work out negotiations with the prosecution lawyer to arrange for a lesser charger or reduced sentence.

In order to have a strong defense, it’s very important to hire the right lawyer who has expertise and a proven track record in handling the crime of which you are accused. Only an expert lawyer can provide you with a reality check–a knowledgeable, objective perspective on the situation–and make you aware of what is most likely to happen, which can prove vital for the defendant in deciding whether to accept prosecutor’s offered bargain.

Criminal law in United States varies from state to state. Though a basic law code is followed all across U.S., it does differ a little across the states. For example, in New Jersey, you have a right to a speedy and public trial. Also, you have a right not to be convicted unless the State can prove each and every element of the offense with which you are charged. If you have encountered a situation where you need to seek the help of a criminal lawyer in New Jersey, it would always be to your advantage to go for a local lawyer practicing there.

It is unfortunately not always easy to find a good criminal defense lawyer. To find a good lawyer, it is always advisable to go by referrals from somebody who is familiar with the law practice. You may wish to sit through some public sessions of court while criminal cases are being argued. If you find a particular lawyer’s performance to be impressive, you may take note of the lawyer’s name and later contact the lawyer about the possibility of representing you. Each state and some major cities have organizations of criminal defense lawyers who can offer referral services or online directories. You can also browse through the yellow pages or online directories listing defense lawyers to find a good lawyer.

Three Family Law Cases Where a Child Custody Attorney Is Necessary

There are some family law cases that may affect a child's legal rights. Most parents are eager to know if they will live with their child or if they will have a role in the raising them. Although the cost is a factor in such cases, enlisting the help of a child custody attorney will help protect the rights of all parties involved. Here are cases in which legal help is recommended to come to a mutual consensus.

1. Divorce cases

In divorce cases, parents wonder how the visitation and support issues will get resolved. Some important points that come up include financial support, property division, and visitation. These factors determine the right approach to resolving the legal issues. In this situation, a lawyer helps the divorcing couple to reach an agreement that will benefit their kids. The couple may opt for an informal settlement negotiation or mediation with the help of a lawyer. If this fails to work, they may want to bring the case to a court of law where a judge can evaluate the case.

2. Unmarried parents cases

There are also cases where the parents are unmarried. In most states, the legal rights are usually awarded to the mother. However, the father can take a legal action to get some form of visitation and guardianship rights as well. The legal approach for divorce cases still applies to unmarried parents cases. The parents can decide to talk to a child custody attorney and reach an agreement. If the mother is reluctant, then the father is free to proceed to take the case to court. Unlike divorce cases, the resolution for unmarried parents is uncomplicated as there are no factors such as property division and spousal support.

3. Non-parental cases

Also known as third-party custody, non-parental cases are types of cases where other people aside from the biological parents may want to obtain the guardianship rights. Such people may include close family friends, uncles, aunts, and grandparents. The state usually provides the correct approach that these people can use to claim custody. A person can seek the help of a lawyer when filling the non-parental petition with a family court. The petition should address three important questions: the person's relation to the child, the state of the biological parents (living or dead) and the reason for claiming guardianship. If the parents are living, they must be issued with a copy of the petition.

Custodial cases can be complicated if the parents are unwilling to reach a mutual resolution. For this case, a child custody attorney will help address all the concerns regarding support and visitation. If either parent or both decides to take the matters before a family court, a lawyer will assist the parent in the legal process and the options they have after a court's verdict. Additionally, getting legal help in such cases helps to ensure that the children will always have the support they need.

Why Should You Purchase Your Auto Insurance Online?

If you’re interested in slashing your auto insurance bill in half then there’s no reason why you shouldn’t consider purchasing auto insurance online. Buying your auto insurance online is extremely easy and very convenient. The process is fast and only requires filling out a simple form. The best part is you can receive multiple quotes from several different auto insurance providers from the privacy of your own home. You can even search for a new money saving car insurance policy in your pajamas if desire to do so.

Many experts agree that most consumers overpay on their insurance policies due to a lack of shopping around. This includes vehicular insurance. Additionally they overwhelmingly endorse purchasing auto insurance online due to the ability to start your insurance application, save it, and finish later if you get pressed for time. If you’re concerned about the cost associated with receiving multiple insurance quotes don’t be. By applying online you can get multiple free car insurance quotes from one application. You’re also never under any obligation to accept any insurance quote provided – even if it saves you money.

As far as the drawbacks to purchasing auto insurance online there aren’t many. Obviously you’ll have to have access to a computer with an Internet connection and around 30 minutes of free time depending on the number of free insurance quotes you wish to receive. Keep in mind before accepting any quote that you could qualify for a bigger discount from your current auto insurance provider if you carry multiple insurance policies with them. For instance a combination of car, home and life insurance may cost less as a group when compared to purchasing individually.

It’s only natural to have concerns with the privacy of the information the insurance company requires you to fill out on their quick quote provider form. However rest assured that any information you provide is kept secure with encryption technology and will not be released to anyone else to include other insurance providers unless you agree to allow it. You can also feel comfortable in knowing that your credit score won’t be affected by applying for free auto insurance quotes online.

After you’ve found a quote that you like purchasing auto insurance online allows you to either accept the quote right then and there or you can opt to receive the rate provided in the mail. Either way you’re guaranteed to save money. A word of caution, make sure the information you provide on the insurance application is correct. Even the smallest errors can adversely affect the money saving rate that is provided.

Probably the most difficult choice will be which online auto insurance provider to choose from in order to receive your free quotes. Look for a company that has excellent customer service reviews and offers a simple application process that provides multiple money saving quotes. Finally don’t forget to check and make sure that they can actually provide an insurance quote for the state you currently reside in

What All You Need To Know About Divorce Lawyers

When you are going through a divorce, you shouldn’t make the most common mistake made by most people-going at it alone. To be on the safe side, hire a divorce lawyer.

Benefits of hiring a divorce lawyer

When you hire a lawyer, he/she will help you in many areas. Some of these areas include:

Filing the paperwork: If you decide to go the court way, you will be required to fill in plenty of paperwork, and this can be intimidating to you especially if it’s the first time you are doing it. You should note that the judge relies heavily on the papers you present in court; therefore, it’s paramount that you fill them accurately and at the right time. If you omit any crucial information, the court might deem you in-genuine which can be fatal in your case.

A divorce lawyer has been involved in numerous similar scenarios; thus he/she will have an easy time filling in the papers and presenting them in court.

Objective advice: Divorce is usually an emotional time. During this time, you feel sad, betrayed, depressed, confused, and vengeful. When you are having all these emotions, it’s difficult to make a sound decision. To give yourself time to work on your emotions, hire a family lawyer to handle your case. The professional will remove the burden off your shoulders. When you have to communicate with your ex, the lawyer will guide you on what to say and what to avoid. The professional will also guide you on how to handle yourself in court.

Plenty of options: Most people think that when they are facing divorce cases the only way out is to wait for the judge to make a ruling. It’s good to know that there are plenty of other options that you can go with. For example, you can have a sitting with your former spouse and reach a settlement. The lawyer will introduce you to the various options and help you choose the best one for your situation.

Tips for working with a divorce lawyer

To make the task easy for the divorce lawyer you need to consider a number of tips. Some of these tips include:

Don’t lie: This is probably the major mistake you should avoid making. Some people try to hide their property and lie to their lawyers. This is wrong as it makes the lawyer present inaccurate information in court. In the event the judge knows that you are hiding information, your image will be in the bad light which jeopardizes your chances of getting a favorable hearing.

Choosing a cheap lawyer: To save money, some people want the cheapest lawyer that they come across. You should note that cheap lawyers are usually inexperienced. Due to this, they don’t have the expertise to handle the process professionally. This increases your chances of losing the case.

Conclusion

This is what you need to know when going through the divorce. To have an easy time, work with a reputable divorce attorney.

Three Ways a Family Law Attorney Can Help You

Learning about family law can be a difficult and emotional process for you and your loved ones. After all, you might seek an attorney to help with a divorce or negotiate the terms of guardianship and alimony. Before you try to navigate the complexities of the legal system alone, be sure to consider the value of legal assistance.

An Evolving and Complex System

Legal codes are constantly evolving and adapting to new policies made at every level of government. This means family law is a complicated system and should only be navigated with the support of a knowledgeable and experienced attorney. After all, all lawyers are required by the American Bar Association to pursue ongoing education throughout their career.

As an example of these complexities, child support payments are determined by a fixed formula based on variables like income and assets, while alimony is based on demonstrating a need and a spouse’s ability to pay. This difference can often cause confusion and lead to you paying more or receiving less each month. Therefore, finding the right attorney to help you understand the system and fight for your rights might save you money both now and in the future.

Local Laws

The internet is a platform to share information and a resource to learn new things, but it has also allowed for a lot of misinformation to be published. Incorrect or overly general data can lead people to make decisions that are based on outdated or inaccurate information. The court system and its processes are different in each state. Advice from a professional sharing legal experience in one part of the country might not apply where you reside. You should therefore always consult a local family law attorney who understands the local system of jurisprudence and how it might apply in the specifics of your case.

Emotional Challenges

Dealing with legal issues, especially those involving family or loved ones, is usually an emotional process. The right family law attorney will support you during this difficult time while also approaching your case objectively and professionally. Ultimately, you will want to find a lawyer with the experience necessary to consider your future, even if you aren’t thinking past the day-to-day.

Whether navigating a divorce or guardianship of minors, the legal system can be confusing. That’s why hiring a family law attorney is worth considering. Having consistent access to someone that can answer your questions will be useful throughout the process.