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NH Estate Planning & Elder Law Blog

Friday, December 21, 2018

Do I Need a Power of Attorney?

First, what is a Power of Attorney?  It is a document in which you can name an Agent to act on your behalf in ways authorized in the Power of Attorney and it is an important part of an estate plan.  When the Agent has authority to act is also included in the Power of Attorney document, for instance, an Agent can be given authority to act immediately or could only act if you are incapacitated.  A Power of Attorney could give your Agent broad powers to basically do anything that you could do in your name, like sign your checks and make withdrawals from your bank account.

Let’s look at two scenarios: One where there is no power of attorney in place and one where there is.

Scenario One:  What happens if I do not have a Power of Attorney?

This scenario can become an issue if you become incapacitated.  If you are incapacitated you are unable to handle your own affairs and, for instance, your bills are not being paid or you are not able to take care of your living space anymore.  Someone close to you may notice this and want to help you.  Legally, they may have no authority to help you, and once someone becomes incapacitated, it is too late to create a power of attorney.  In order to have that authority, this person could initiate a guardianship proceeding in Probate Court (in NH) asking to be appointed your guardian.  Generally, this person would need to put on evidence relating to your inability to handle your finances or take care of yourself at a Court hearing. 

Scenario Two:  I have a Power of Attorney

If you do have a power of attorney document in place and you become incapacitated, then the Agent(s) named in the document can start to manage your affairs.  As mentioned above, the Agent’s power is spelled out in the Power of Attorney document.  An Agent owes you, the Principal, fiduciary duties, such as to act in your best interest, not commingle their assets with yours, and safeguard and manage your assets prudently, to name a few.  Having this Power of Attorney document in place prior to your incapacity may obviate the need for someone to seek a guardianship over you.




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