Understanding durable power of attorney dynamics can be a bit overwhelming. In Vermont, estate planning attorneys are bound by explicit laws designed to protect residents.
Here are a few questions our office receives concerning the power of attorney laws in Vermont.
My spouse and I own everything jointly. Is a durable power of attorney necessary?
The short answer is yes. Should you become incapacitated, your spouse will be able to withdraw funds and sign checks from your bank accounts; however, you spouse won’t be able to sell any stocks or other assets, such as your home, if it’s jointly owned. Further, your spouse won’t be able to change insurance policies or retirement benefits if you’re both on the accounts. A durable power of attorney can level the playing field, so to speak, and serve as your voice if you can’t. It’s important that your spouse also have a durable power of attorney for those same reasons.
I’m not incapacitated, why should I have a durable power of attorney in effect?
It’s the same mindset as you have when you create your will: you’re still alive, yet you need a will. If you become incapacitated, your chosen agent isn’t left with the burden of producing any kind of medical evidence that would wreak further havoc on an already difficult time. That said, this is exactly why it’s important to choose someone you implicitly trust. Your purpose is defeated if the one document meant to provide peace of mind actually causes you to lose sleep at night.
Does that mean I can stipulate a durable power of attorney is in effect only if I am incapacitated or otherwise disabled?
Of course. Your estate planning attorney can include a clause that states the agreement is in effect only if and when you become disabled. You can provide any kind of determination you choose and your legal representation will help ensure your bases are covered.
What happens if I want to cancel or revoke the durable power of attorney? Can I do that?
Yes, you can cancel at any time, provided you have the capacity to do so. You can modify it easily; however, the revocation should be in writing and it should be delivered to the agent and third parties with whom the agent is dealing. Again, in Vermont, your estate planning lawyer can help you with those details so that you won’t have to worry about the proverbial dotted “I’s” and crossed “T’s”.
What happens to the durable power of attorney if I die?
It terminates at the time of your death. The exception is if there is any uncertainty as to whether you are actually deceased. Crazy as it sounds, when it comes to human nature, the legalities must err on the side of caution in order to protect those involved.
So what should I include in my durable power of attorney?
In Vermont, you’ll want to discuss the details with your estate planning attorney, who will then encourage you to consider these factors:
- Property ownership
- Bank transactions, including safety deposit boxes
- Support and care for your children
- Insurance and retirement
- Contractual obligations you had prior to your disability
- Any ongoing legal claims, such as divorce
- Tax considerations
These are just a few of the important elements that go into deciding the specifics of a durable power of attorney. Again, it comes down to your specific needs.
Finally, don’t forget to ask questions. Your legal representation is there to assist you and to work with you to decide the absolute best options for your specific needs.
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