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Posted on Thursday, August 6th, 2015 by Peter Klenk

From our “Ask a Question” mailbag: My father, who lives in Atlantic County, New Jersey, is having serious health problems. He wants me to be able to use his general power of attorney, but it says I need a doctor’s note saying that he is incapacitated. Is that normal?

Your father has a “Leaping” Power of Attorney, which used to be the normal document that Atlantic County Estate Planning Lawyers would prepare. A Leaping Power of Attorney only gives the “Agent” the power to act if—and only if—the principal is incapacitated, and the principal’s doctor confirms the incapacity in a letter. Without the letter the power of attorney is useless.

Leaping Powers of Attorney fell out of favor because doctors, fearing lawsuits, are hesitant to sign letters declaring the person is incapacitated. They know the Agent will then have power over their patient’s money, and if the agent embezzles funds the doctor may be dragged into litigation.

Nowadays, the normal document drafted by an Atlantic County Estate Planning Lawyer gives the Agent the power to act as soon as the document is signed. The raises the question of: “when to give the Power of Attorney to the Agent?” If you give the document to the Agent, the Agent could embezzle or steal assets, using the document illegally.

At our firm, we offer the client the free service of holding the Power of Attorney in our safes. This includes written instructions that we are only to release the General Power of Attorney to the Agent if the Agent can prove to us that our client is incapacitated. This way, the document is signed and ready to use, but the Agent cannot use it steal from the client. Proving incapacity is usually simple, as the client is often hospitalized by the time the Agent contacts us.

In your case, if your father is still competent, I suggest he consult with a Atlantic County Estate Planning Attorney and sign a new Power of Attorney.

If you have questions about Estate Planning in Atlantic County, feel free to contact our office for a free consultation.

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