1. Lifecare Planning by Use
of Powers of Attorney
Hanlon Niemann, PC
3499 Route 9 North, Suite 1F
Freehold, NJ 07728
(732) 863-9900
fniemann@hnlawfirm.com
www.powerofattorneylawyerinnj.com
www.njelderlawcenter.com
www.hnlawfirm.com
Elder Law, Estate Planning, Asset Protection and
Veterans Benefits Attorneys
2. Fredrick P. Niemann, Esq.
Fredrick P. Niemann offers his clients nearly 30 years of
accomplished practice in the law. He is a member of the National
Academy of Elder Law Attorneys, the Guardianship and
Conservatorship Committee of NAELA, Monmouth County
Probate and Estate Committee and the Monmouth County
Chancery Practice Committee. He is a certified will case mediator
approved by the NJ Supreme Court. Mr. Niemann is one of the
select few attorneys in NJ, accredited by the Veteran’s
Administration to apply for Aid and Attendance benefits for
Veterans and their spouses. He has been listed by the prestigious
Martindale-Hubbell as “peer review” rated for 2008. A MartindaleHubbell rating attests to a lawyer’s legal ability and professional
ethics, it reflects the confidential opinions of the bar and judiciary.
3. Legal Wit
What do you get when you cross a librarian with a
lawyer? A lot of information you need, but nothing
you can understand.
When questioned by a prospective client as to what a
contingent fee is, the lawyer answered,
“A contingent fee to a lawyer means, if I don’t
win your case, I get nothing. If I do win your
case, however, you get nothing.”
4. Cont.
How can you tell when a lawyer is lying? His lips are
moving.
The first thing we do, Let’s kill all the lawyers
Shakespeare
6. Why have a Power of
Attorney?
• Excellent Planning device for individuals
concerned about their present and future
physical and/ or mental health and
independence
• Allows for continuous decision making for
the benefit of a person who is mentally or
physically incapacitated
7. What is a Power of
Attorney a/k/a POA?
• It is a document appointing another
person ( an individual/ agent) to act on
your behalf with legal authority on your
behalf
8. What are the Formalities of
a Power of Attorney?
• It must be a written document
• Describing the power(s) being giving to the agent
• The person who is giving the POA must be
competent
• It must be signed
/ notarized
• It must be acknowledgedestate deed, as a formal
legal document (ie., real
will, trust)
9. What is meant by the term
“competent” or “legal capacity”
Generally and simply stated, it means:
Does the person giving the Power
•
•
•
Understand the purpose of the Power
Understand the general consequences/ effect of
giving a Power(s)
Understand & approve of his/her agent as the
person receiving the Power of Attorney
10. In addition, the Power of
Attorney must be:
• Voluntarily given
• And, the person giving the POA must be
under no coercion, duress or undue
influence
12. The Power you give can
be Limited or Unlimited
in Authority and in Time
•
Example: The agent’s authority is limited by the
document to just:
•
•
•
•
•
paying bills
Banking
filing tax return(s)
managing/making investments
representation before Social Security, Medicare,
& Government Benefit Agencies
Cont.
13. Limited Power of Attorney Cont.
• Enter into contracts
• Select and change health insurance plans
• Select, consult with physicians and
professional advisors
14. What is an
Unlimited POA?
• An unlimited POA allows your agent to be
“you” to act in all ways that you would act
• Can be unlimited in time as well
15. The Power must specify the
duration of the POA
• Limited time period
ie: One year, one week, one day time limit,
etc.
Unlimited time period
No expiration date specified
Lifetime or until revoked by grantor
16. All Powers of Attorney
can be REVOKED BY GRANTOR
AT ANY TIME WHILE
COMPETENT
17. When Does a POA
Become Effective
•
•
•
Grantor must decide the start date
Can be “effective” immediately upon signing or
contingent upon the event of incapacity or
disability
Examples of incapacity / disability may be:
stroke, heart attack,
Alzheimer’s / Dementia
unconsciousness
18. Which Type of POA
Should You Use
• The answer depends on:
Your health
Your relationship with your POA
His/ Her trust worthiness
How you feel about giving a POA in
general
19. • Other considerations to giving a POA:
• Your independence/ dependence on others,
now and in the foreseeable future
Which leads to the next issue. . .
20. Who should you select to be your POA?
and
• What?are the risks and benefits of having a
POA
Did you know?
... continued
21. No One Has the Automatic Legal
Right
To Act for Another
• Not a :
husband for a wife nor wife for a husband
Parent for an adult child or adult child for
parent
Not a sibling for a sibling
Here’s a real life story
cont’d.
22. Case Study
• Clients are husband and wife, mid 60’s who
sign a contract to sell home. Husband, while
cleaning windows falls off ladder, hits his
head, and goes into a coma. Who legally, can
sign the deed to close title on the house for
the husband?
Wife? Children?
23. Answer, neither
• Hanlon Niemann petitioned court for a
limited guardianship to allow wife to sign
deed in order to close title and avoid being
in default under contract.
24. Example #2
Adult child, disabled from birth/early
childhood, is now over the age of 18 and
requires public benefits.
Can Mom or Dad handle child’s affairs?
Answer:
No
25. What are Considerations
for Selecting a POA?
Select someone:
like yourself
reliable
trustworthy
good judgment
will honor/ respect your values,
instructions, and priorities
(cont.)…
26. Considerations cont.
• Can be a family member or non family member
• Can be an institution or corporate
representative
• Representative of an institution
27. Benefits vs. Risks:
• Benefits of a well written POA
1. Avoids guardianship or conservatorship
(guardianships and conservatorships)
(Why does this matter?)
Guardianships and conservatorships are
formal legal proceedings and can cost
$4,500-$7,500 or more for legal, physician
and court fees, ongoing court supervision
and accountings
28. Why Do You Need a
POA?
• Avoids having the court select someone
other than your choice.
• It gives you peace of mind
29. What Are the Risks?
• Your agent steals from you
• Your agent abuses his/ her authority
• Agent makes decisions you don’t agree with
30. Can you Avoid or Reduce
Risk? (Answer: Yes)
Do nothing
pick a trustworthy person
require a bond
require annual accountings with disclosure to
family or third party
limit effective date of POA to “event of disability
cont
31. Reducing Risk Cont.
revoke your POA and select another person
(can always revoke, until your last breath or
you are determined to be mentally
incompetent
Consider giving original and copy of Power
to a trusted person or your attorney who is
not the designated POA, until disability.
32. Miscellaneous Points
of Interest
• Death terminates POA, then Last Will and
Testament or a trust controls assets, income
and final arrangements of your estate
33. POA can include a power of the
person as well as power over
finances and assets
• This is a very important concept
• Power to decide non financial matters for a
person is critical
Example : life and healthcare decisions and
planning, including
•
Selection of a physician
Cont
34. • Care Planner
• Professional Advisors
• Location of residence and
living environment
• Including social, medical
35. Responsibilities of the POA
• The POA must maintain accurate
records of all financial transactions
and may be required to account to
principal or guardian of the estate
36. for NJ POA to be durable
• In order youra incapacity), it must contain
(survive
language “ this POA shall not be affected by
the disability of the principal”
effective only upon
• A POA that becomes disclose this predisability must clearly
condition and contain a method whereby
incapacity will be determined (ie., two
independent doctors, judgment of court,
evaluations or similar process)
37. Legal Liability of the POA
to Third Parties
• A POA acts as an agent and assumes the
obligations of a fiduciary under terms of the
power
• An agent can be held negligent to the
principal because of a breach of fiduciary
relationship within scope of the POA
• Reasonable level of diligence, skill and
competence among equally situated
individuals/ agents
Cont
38. Legal Liability Cont.
• Agent generally has no special duty to third
persons by reason of
agency relationship
• Liability attaches only for
his own conduct to others
