Jack E. Stephens has been designated as a panel speaker to educate other attorneys sponsored by the California Education of the Bar (CEB) and the National Business Institute (NBI) on the proper use and limitations of Durable Powers of Attorney in California.
The Problem: Many individuals who have been designated as agents, also known as attorney-in-fact, in a Financial Durable Powers of Attorney (DPA), are significantly confused as to what authority they may exercise. They are many times conflicted as to what assets they have authority over, especially if they are also designated as the Successor Trustee.
Numerous Healthcare agents don’t understand the extent of his/her authority over life support issues and basic requirements to act for an incompetent Principal. Are you prepared and willing to decide the life support decisions for your spouse, parent, sibling or child?
Our expertise in this area will benefit you and your family as follows:
1. Clarifies the authority of an agent over assets so as not to conflict with the Trustee of the Family/Living Trust ;
2. Provides support and on-going advice as to when and how the Financial DPA is effective in California and the guidelines the agent must follow;
3. Provides attachments to the Advanced Health Care Directive so that the Principal makes life support decisions while competent so as to remove this burden from the agent;
4. Instructions are given on the DPA prior to signing; and
5. Advise on the appropriate agents to designate in the DPA to avoid conflicts and potential legal proceedings with conflicting authority.
What is a Durable Power of Attorney and why is it essential?
A Durable Power of Attorney (DPA) is a legal document that authorizes a person you designate to manage your financial affairs if you become incapacitated. The word ‘durable’ means it remains effective even after you lose mental capacity, unlike a standard power of attorney which becomes void at that point. Without a DPA, your family may need to petition a court for a conservatorship to gain legal authority over your finances, a process that is expensive, time-consuming, and entirely avoidable with a properly drafted document.
What is the difference between a financial Durable Power of Attorney and an Advance Health Care Directive?
A financial Durable Power of Attorney authorizes your agent to manage financial matters: bank accounts, investments, bill payments, tax filings, and real estate transactions. An Advance Health Care Directive covers medical decision-making: your treatment preferences, who communicates with your doctors, and who makes end-of-life decisions on your behalf if you cannot. Both documents are essential parts of a complete California estate plan and are typically prepared together.
If I already have a Living Trust, do I still need a Durable Power of Attorney?
Yes. A Living Trust governs assets titled in the name of the Trust, but not assets held outside of the Trust. An example is retirement accounts. Having both a fully funded Living Trust and a current DPA ensures there is practically no situation, however unexpected, in which your family lacks the legal authority to act on your behalf.
How is authority divided between my DPA agent and my Trust’s successor Trustee?
The Trustee manages assets held inside the Trust. The DPA agent manages financial matters that fall outside the Trust. When these roles are given to different people, their authority must be clearly defined in both documents to prevent overlap or disputes. Jack Stephens provides detailed instruction to each agent at the time of signing, so everyone involved understands exactly what they are authorized to do and where the other person’s authority begins.
Can I specify my own end-of-life preferences so my family does not have to make those decisions?
Yes, and this is one of the most meaningful things an estate plan can do for a family. Stephens Law Group prepares specific attachments to the Advance Health Care Directive that allow you to document your own life support preferences while you are still competent. This removes that burden from your healthcare agent at a time of enormous emotional stress. Waiting until a health crisis to address these questions is when the conversation is most difficult. Getting it in writing now is a genuine gift to the people you love.
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