Incapacity planning is one of the most common secondary goals of a comprehensive estate plan, as well it should be. Protecting your assets and your loved ones in the event of your death is certainly an important goal; however, the same basic reasoning should also encourage you to want to protect both from the possibility of your incapacity. Deciding how your property will be handled in the event of your incapacity is a primary focus of most incapacity plans. Toward that end, you may consider creating a durable power of attorney for property. Before deciding to use one, however, you should know the disadvantages and advantages of a durable power of attorney for property as well as the alternative options.
Incapacity can strike at any time. Statistically speaking you stand a one in five chance of suffering a period of incapacity before you reach retirement age. After that, the odds increase significantly. Should you suddenly become incapacitated, who will take care of your property? Without the legal authority to do so, no one will be able to do even the basic things such as inquire about the utility bills that might be due. If your incapacity lasts for a long enough period of time that renting or selling the property becomes necessary, no one can do that without legal authority to do so. A durable power of attorney for property is one option.
A power of attorney, or POA, gives you the ability to appoint an Agent who will have the authority to act on your behalf in legal matters. If the POA is specific to property the authority granted will relate only to your property. When a POA is made “durable” it simply means the authority granted in the POA survives the incapacity of the Principal (you). Advantages to using a durable POA include the fact that is it relatively simple to create and does accomplish the general goal of allowing you to decide who will control your property; however, there are some disadvantages as well to using a POA. For example, if there are changes to the property you own you may need to completely redo your POA to include those changes which can be cumbersome.
One popular alternative is to create a revocable living trust and appoint the person you wish to have control over your property as the successor trustee of the trust. Control over all trust assets will then automatically shift to the successor trustee should you become incapacitated at any point in the future.
If you have additional questions about incapacity planning or estate planning in general, contact the experienced South Carolina estate planning attorneys at Kuhn & Kuhn Law Firm by calling 843-577-3700 to schedule your appointment.