Judges around the country say they're finding a rise in the misuse of estate money by conservators, also called guardians, who are appointed by a court to manage the money of elderly and mentally ill people.
Conservators, who are paid for their services, get appointed by petitioning a court that a friend or relative is unfit to manage his own affairs. Most such petitions are routinely approved by the court.
New York real estate broker John Zaccaro, husband of Democratic vice presidential candidate Geraldine Ferraro, borrowed $175,000 from the estate of an elderly Long Island woman for his own use. Mr. Zaccaro, who repaid the loan with interest, said he didn't know he shouldn't have used the money. Although he wasn't charged with any wrongdoing, a court removed him as conservator of the estate.
Unfortunately, results are far more disastrous in many cases. Estates are virtually looted by conservators with little credible fear of prosecution and the victims, often of feeble mind and body, are left with their life-time savings completely siphoned-off.
Now a significant legal breakthrough has occurred. But this has been a quiet breakthrough. So much so that many people are simply not aware that an important legal tool is available to them which ensures that decisions about their health care and financial affairs will be made by a trustworthy and competent person of their choice - if and when circumstances do arise.
The function of a Durable Power of Attorney is to eliminate the need for conservatorship or guardianship proceedings in a court of law should you ever become incapacitated and be unable to manage your own financial affairs or make your own health care decisions.
The Durable Power of Attorney keeps you in charge of your own destiny. You, and not some judge, will determine who has the legal authority to act for you should the time ever come when you cannot make decisions for yourself. Unless and until such incapacity occurs, you continue to retain full control over your health care and financial affairs. If it does, the person you have appointed will take over your affairs and act within the limited guidelines and restrictions you have already established in the document.
The person you've chosen to act in your behalf is called your attorney in fact. Clearly, your attorney in fact must be someone you trust completely. This could be your spouse or another responsible member of your family or a friend. Additionally, the law gives you power to impose reasonable limitations and guidelines on the actions which your attorney in fact can take.
The attorney in fact can pay bills, deposit checks, handle tax forms, sell stocks, invest in securities - in short, everything that you would otherwise do for yourself. You can specify in your Durable Power of Attorney whether you wish to have your money invested in stocks and bonds, real estate, or simply allowed to stay safely in a bank. As a safeguard, you can specify on your forms that your representative cannot sell or encumber your house as long as you're alive.
The Durable Power of Attorney document authorizes the person you've selected to make limited medical and health care decisions when you're not in a position to make them for yourself. This may involve honoring your desire to be cared for by a particular physician in a particular medical facility, or it may involve prohibiting the use of heroic medical efforts to sustain life artificially long after it has ceased to exist in any meaningful manner.
The point is, the Durable Power of Attorney allows you to express your wishes in a legal form and gives your attorney in fact the required power to implement them for you. You can revoke this power at any time as long as you're competent.
Remember, without the Durable Power of Attorney, general court proceedings may be necessary to appoint a person with legal authority to handle the incapacitated person's financial and health care affairs. Such guardianship or conservatorship proceedings are costly, time-consuming, public and embarrassing. A court-appointed conservator has to post a bond cost of which comes out of your estate. He has to make periodic accountings to the court of his actions. His powers are limited, highly restricted and always subject to court supervision. And once a conservator is appointed, it will take another order of the court to replace him even though he proves to be incompetent or negligent.
For one thing, the Durable POA is an easy to prepare document. You don't need to pay the high costs of an attorney to fill out these forms. We've designed a Durable Power of Attorney Kit that a layperson can use. The Kit has detailed information, general samples, and the forms you need to execute a valid Power of Attorney. With it, you can appoint a person of your choice to manage your financial affairs and make health care decisions for you in the event you become incapacitated.
The Kit has forms that will make the Durable Power of Attorney document effective upon signing if you so desire, or you can stipulate that it comes into effect if and when you become incapacitated. It also shows you how you can revoke your Durable Power of Attorney at any time.
The Durable Power of Attorney is 100% legal and valid in all fifty states (Washington D.C. is an exception.) Many states have passed laws adopting statutory forms for Durable Power of Attorney. We've included such forms in the Kit. And finally, the Kit has sample completed forms to guide you along.
If for any reason you feel that the Durable Power of Attorney Kit isn't for you, simply return it at any time within one full year for an immediate refund of your money. No questions asked. You risk nothing.
P.S. As we've seen, most people are simply not aware that a powerful legal tool has been made available to them that keeps them in the driver's seat, so to speak, even when they've become physically and mentally incapacitated. The Durable Power of Attorney staves off costly and embarrassing court proceedings at a critical time in your life. Indeed, it's an ounce of prevention worth far more than the pound of cure the courts will provide after the fact.
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