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WHO SHOULD
BE YOUR AGENT
You may wish to choose a family member to act on your behalf. Many
people name their spouses or one or more children. In naming more
than one person to act as agent at the same time, be alert to the
possibility that all may not be available to act when needed, or
they may not agree. The designation of co-agents should indicate
whether you wish to have the majority act in the absence of full
availability and agreement. You should name a successor agent to
address the possibility that the person you name as agent may be
unavailable or unable to act when the time comes.
There
are no special qualifications necessary for someone to act as an
attorney-in-fact except that the person must not be a minor or
otherwise incapacitated. The best choice is someone you trust.
HOW SHOULD THE AGENT SIGN
Assume Elvis Presley appoints his wife, Priscilla Beaulieu Presley,
as his agent in a written power of attorney. Priscilla, as agent,
must sign as follows: Elvis Presley, by Priscilla Beaulieu under POA
or Priscilla Beaulieu Presley, attorney-in-fact for Elvis Presley.
BEYOND SIGNING CHECKS
In addition to managing your day-to-day financial affairs, your
attorney-in-fact can take steps to implement your estate plan.
Although an agent cannot revise your will on your behalf, some
jurisdictions permit an attorney-in-fact to create or amend trusts
for you during your lifetime, or to transfer your assets to trusts
you created. It is prudent to include in the Power of Attorney a
clear statement of whether you wish your agent to have these powers.
Gifts
are an important tool for many estate plans, and your
attorney-in-fact can make gifts on your behalf, subject to
guidelines that you set forth in your Power of Attorney. For
example, you may wish to permit your attorney-in-fact to make
"annual exclusion" gifts (currently up to $10,000 in value per
recipient per year) on your behalf to your children and
grandchildren. It is important that the lawyer who prepares your
Power of Attorney draft the document in a way that does not expose
your attorney-in-fact to unintended estate tax consequences. While
some states permit attorneys-in-fact to make gifts as a matter of
statute, others require explicit authorization in the Power of
Attorney.
STATE LAWS VARY
Beyond the ability to make gifts on your behalf, many aspects of a
Power of Attorney are governed by state law. Generally, the law of
the state in which you reside at the time you sign a Power of
Attorney will govern the powers and actions of the agent(s) under
that document.
WHAT IF I MOVE?
Generally, a Power of Attorney that is valid when you sign it will
remain valid even if you change your state of residence. Although it
should not be necessary to sign a new Power of Attorney merely
because you have moved to a new state, it is a good idea to take the
opportunity to update your Power of Attorney.
WILL MY POWER OF ATTORNEY EXPIRE?
Some states used to require renewal of Powers of Attorney for
continuing validity. Today, most states permit a "durable" Power of
Attorney that remains valid once signed until you die or revoke the
document. However, you should periodically meet with your lawyer to
revisit a Power of Attorney and consider whether your choice of
agent still meets your needs and learn whether developments in state
law affect your Power of Attorney.
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