Power of Attorney and Planning Ahead Can Help - Kansas law
by:
Jeffrey Broobin
At present, many people have not planned for their potential incompetence. There are number of legal devices that are readily available to assist people in expressing their wishes in advance. Two of these devices include a Durable Power of Attorney for Financial Decisions (General Durable Power of Attorney), and Durable Power of Attorney for Health Care Decisions. A senior citizen may become permanently disabled due to a stroke, or a young adult might be rendered temporarily unconscious as a result of an automobile accident. In both of these scenarios, the trauma thrust upon everyone involved can be overwhelming, especially when interested parties disagree about how to handle the crisis. As with most things in life, planning ahead can help.
The two devices, Durable Power of Attorney for Financial Decisions and Durable Power of Attorney for Health Care Decisions, will be discussed separately.
A durable power of attorney, is a form of agency. The person who gives the power is the principal, and the person who receives the power is the "attorney-in-fact" or agent. "Durable" in this context means that the agent's power will survive the principal's incapacity or disability. As a result Durable Power of Attorney's, can be used as an alternative to guardianship in some states under certain circumstances, provided the principal executed the document before losing capacity.
As a general rule, a General power of attorney is also referred to as a Durable Power of Attorney for Financial Decisions, or simply a Durable Power of Attorney. A Durable Power of Attorney for Health Care Decisions is also a Durable Power of Attorney, but its authority is limited to health care decisions. In Kansas, both powers can be contained in the same document. Because these two documents convey such divergent authority to one person, many seniors choose a different person for each of these powers. The agent's authority to act for the principal under a Durable Power of Attorney is based on the powers that the principal gives to her. Whether broad, general powers or limited, specific powers are given to the agent is completely determined by the principal. Among other things, the principal may delegate to the agent in the Durable Power of Attorney the authority to make deposits and withdrawals from his checking account, to file his tax returns, and to sell his home. There are a few powers, however, that the principal may not delegate. For example, the agent cannot prepare a will, vote, or seek a divorce on the principal's behalf. In Kansas, the principal may grant a gifting" power to her agent, but this power generally must be stated with specificity within in the Durable Power of Attorney.
Two primary methods exist to determine the effective date of an agent's power under a Durable Power of Attorney. First, a Durable Power of Attorney may confer power to an agent at the time the documents are executed and delivered. A second method reserves the agent's power until the principal has become incapacitated or disabled. Upon the occurrence of either of these events, the power springs into effect. This type of Durable Power of Attorney is labeled "springing." Kansas law provides for both types in the Uniform Durable Power of Attorney Act. Senior citizens' needs vary; therefore, no solution is best for all people. Many considerations will need to be evaluated in order to determine how the senior's needs are best meet.
A durable power of attorney is revocable by the principal while he still has capacity. If the agent has a financial interest in the subject matter of the power of attorney, the power is generally irrevocable. Most senior citizens who execute Durable Power of Attorney's are getting assistance with their day to day personal affairs and their agents do not have an ownership interest in the senior's property which would preclude revocation. In addition, revocation can be by implication, in addition to, destruction of the document or express revocation by the principal.
Other modes of termination include: death of the principal or agent, occurrence of a specific event, qualification of a guardian, or the passage of a date of expiration. Generally, after the death of the principal, the agent of a Durable Power of Attorney may bind the principal using a Durable Power of Attorney only if she does not know of the occurrence of this event.
The agent binds the principal in accordance with the laws of agency. As a result, the principal is personally liable for contracts made by the agent on the principal's behalf. The agent should follow the direction of the principal while the principal remains competent. The agent has a duty to act solely for the benefit of the principal, and if she does not, she is subjected to liability for her breach. Although this general principal is true, often the agent may not have any assets for which she may be held accountable. As a result, senior citizens are often advised to select a trustworthy person to be their agent. If the principal's competency is in question, the agent may need to seek determination of a court prior to acting against the wishes of the principal, or she may be liable to the principal for breach of her fiduciary duty.
Kansas law does provide for the recording of any instrument which affects real estate. Recording, however, is not currently required by Kansas law. If the original Durable Power of Attorney was recorded, however, any subsequent revocation should be recorded. Some states do required recording of a Durable Power of Attorney that will affect real estate.
The Kansas statutes provide for a Durable Power of Attorney for Health Care Decisions. The same basic concepts explained above for Durable Power of Attorney apply to the Durable Power of Attorney for Health Care Decisions with regard to agency law, effectiveness, revocation, and termination.
The key difference between the Durable Power of Attorney and the Durable Power of Attorney for Health Care Decisions is the authority granted. The Durable Power of Attorney for Health Care Decisions specifically grants authority to the agent to make decisions about and relating to medical treatment. For example, the agent make consent to treatment, refuse to consent to treatment, or withdraw consent to treatment. In addition to these decisions directly about medical treatment, the agent may make all arrangements at any hospital or nursing care facility, employ or discharge care personnel, request, receive, and review any information about the personal affairs or physical or mental health of the principal.
As a contingency, it is recommended that the principal select a successor to his agent. The successor attorney-in-fact may be designated in the same document as the primary attorney-in-fact. If this does occur, the Durable Power of Attorney will continue, beyond the life of the primary attorney-in-fact, provided the successor is living and competent.
A complete discussion of statutory formalities, drafting, and various tax liability is beyond the scope of this summary. It should be noted however, that most states restrict who may be a witness to Durable Power of Attorney or Durable Power of Attorney for Health Care Decisions, and some restrict who may be an Health care agent.
This overview of the law is for reference and education only, and is no replacement for competent legal counsel.
About the author:
Jeffrey Broobin is a free-lance writer on family and finance issues; his main goal is to help people during their complicated period of life. Website: http://www.legalhelpmate.com Email: jeffreyb@legalhelpmate.com
Seven Sets of Documents
You Need For Your Divorce
by: Scott Morgan
This article is designed to give someone who is considering or planning
for the possibility of divorce an idea of what documents are needed. Even
if you believe your case is ultimately agreed to and settled without a
trial, you will be in a much better position if you already have the
relevant documents in your possession. Better safe than sorry.
You should locate the relevant documents, make copies, and keep them
somewhere secure, like your office or with a friend. You will then have
access when it is needed.
Here are the most important seven categories of documents you should
focus on.
1. Income Documents
Your spouse's income is relevant to a number of issues in a divorce
case. At a minimum, get your spouse's last paycheck statement and your
most recent tax return. Ideally, you would have access to all tax returns
filed during the marriage, along with all supporting documents and
schedules.
2. Bank Records
The monthly bank statements are very important and can lead you to
other documents (cancelled checks, deposit slips, registers, etc.) that
you also may need to obtain. Get at least the most recent statement for
each account that is either held in your name, your spouse's name, or
jointly. If possible, get copies of all statements going back to the date
of marriage. In most cases this volume of records is not required, but in
some cases these records can be very helpful and even necessary to analyze
the case.
3. Retirement and Other Investment Records
Often the biggest asset a couple will own will be a 401k or pension
account. So you will definitely want the most recent account statement and
ideally all statements dating back to the time of marriage. Also, the last
statement prior to marriage can be very significant (especially in
community property states) to show the pre-marriage balance.
4. Credit Card statements
Again the most recent statements are a necessity, but a lot of
important evidence can be garnered from the historical statements. In some
cases, the credit card statements will show questionable transactions that
can be of real evidentiary value. For example, they might show evidence of
gifts or dinners purchased for paramours, questionable hotel rentals, or
other dubious purchases.
5. Real estate documents
The most important real estate documents are the Deed of Trust and
Warranty Deed for any property you currently own. If you have the entire
file from (the giant stack of paper you got after the closing) for each
real estate purchase or refinance transaction during the marriage it can
be helpful. Additionally, documents evidencing real estate owned by either
spouse prior to marriage can be significant, especially in community
property states.
6. Mortgage statements & any Other Debts
You should get the most recent statements showing the current payoff
balance for any other debts. For those debts that have only a coupon book
with no regularly generated statements showing the current balance, you
will probably need to contact the creditor by phone for the current payoff
information.
7. Relevant emails or other correspondence
Correspondence or emails can be extremely helpful (or damaging,
depending on your viewpoint) pieces of evidence in the case. Whether the
communication is between spouses or between a spouse and some third-party,
the communication is potentially relevant. Two common examples would be
where your spouse makes a damaging admission about some issue in the case,
or communications with paramours.
Conclusion
Determining which documents you need to obtain for your divorce case
can be a very time-consuming and daunting task. Use this list as a
starting point and discuss your situation with a quality divorce attorney.
This person should be able to advise you specifically on the documents you
need to obtain in order to protect your interests.
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