Redline Revocation of Power of Attorney with airSlate SignNow

Redline revocation of power of attorney

hello my name is Jonathan Barlow I'm an attorney here at clear counsel law guru part of my large part of my practice is in estate planning and guardianship and in doing estate planning we frequently come across our we often do what's called a power of attorney for people and sometimes we get to the point where we have to file for a guardianship for people we're gonna talk about what those two things mean especially for elderly elderly people in Southern Nevada an important concept though before we discuss those two things is capacity that's gonna come up over and over again in the discussion of power of attorney and guardianship so what is capacity capacity simply means for you as a person your ability to mentally appreciate and understand the consequences of your decisions decisions whether they're financial decisions whether they're healthcare decisions have risks and rewards and and consequences your mental ability to appreciate the consequences of those decisions and act rationally in relation to those risks and consequences essentially its capacity as we all know there are medical conditions and other reasons that people begin to lose capacity over time and sometimes it happens very quickly through accidents and other other things that may happen such as traumatic brain injuries where the person loses capacity what that means is they are no longer mentally able to appreciate those risks and rewards and consequences of their decisions and thus it raises concern about the person's well-being about their safety about being subject to potential exploitation by other people or undue influence from other people and so those processes put in place to protect against a protecting person in the event of incapacity so that's a brief nutshell of what capacity means so let's talk for a minute about what is a power of attorney and how it can help an elderly person a power of attorney is essentially kind of like a contract where you enter into a doctor you're gonna sign a document that is going to grant rights and authorities and powers to a person what is called an agent under the power of attorney to make decisions for you or to exercise rights and authorities that only you can exercise let me give you some examples of what the person can do for under a power of attorney let's let's assume you've named your son Frank to be your power of attorney under a and there's two types of power turning excuse me sorry for this sidetrack but there's a medical power of attorney and there's general power of attorneys so there's generally two different documents same concepts we're naming Frank to make decisions so under the medical power attorney that's fairly straightforward it allows Frank to make medical decisions for you in your place again and only if you are not able to make those medical decisions for yourself for instance you'd be able to determine what met it what medications you would receive what doctors you were treated by what hospitals you might be admitted to what rehab facilities you went to after being treated in a hospital where you're going to live after being treated in a hospital or rehab facility those are medical decisions related to who you are as a person and your your well-being as a person under a general power of attorney an agent can make decisions or has authority over such as your bank account they can access your bank account and use it they could they could sell your house for you they could prepare and file your tax returns for you they'd have authority over your insurance policy such as homeowners insurance car insurance health insurance essentially anything that you can do in general the agent would have the ability to make those decisions and has the authority to do that under the power of attorney now there's an important concept in power of attorney that you need to understand and it's a protection for most people and I often recommend it for almost all of my estate planning clients and that's called the springing power of attorney or springing rights under a power of attorney let's think in your mind about that point in the future at which point you have lost capacity what we talked about again you are incapacitated think about that point in the future if you have designated your power of attorney to be a springing power of attorney Frank your son who you named to be your agent though you've named a measure agent in the power of attorney he has no rights he has no power or authority until you become incapacitated and then he rights spring into effect in essence and how does Frank accomplish that how to suit how do his rights spring into effect well Frank has to go to a doctor to a physician and and obtain an opinion from the physician that says my mom and my dad has lost capacity that they are incapacitated once he gets a doctor's opinion his power and authority into the power of attorneys spring into effect so it's a protection for you if if you want to put that power of attorney in place to protect that time when you're incapacitated you can do that but you want to reserve to yourself and only yourself even though you love and trust Frank while I have my capacity I'm the only one that is going to make these decisions when I become incapacitated his authority springs into effect it's a great protection is something that most people should think about and consider rather than the opposite which is if it is not springing Frank can use the power of attorney tomorrow while you have your capacity to run your life for you some people want that because they want the assistance most people say I love Frank I trust Frank but let's wait until I'm incapacitated power of attorney is very good for elderly people it's relatively inexpensive to have a power of attorney it avoids the need for court a court guardianship process when that incapacity arises and it allows the person to act pretty quickly without needing to wait for Court Authority which transition that's us now to court guardianship process many people don't get a power of attorney while there while they have capacity and they come to the point of incapacity and suddenly Frank or other families have become concerned that you are not able to make your decisions or that you're making unsafe decisions that are putting you at risk they don't have a power of attorney document they can rely on the only way that they can have those same rights and same authorities to take care of you is to file papers in the court guardianship court asking that that the Frank or whoever be named as the guardian for you assuming that you are incapacitated and and other legal standards applied that show that the guardianship is appropriate once the court appoints as the Guardian Frank has those essentially the same rights as he would have in her power attorney same rise to make medical decisions for you to decide what health care you'll receive to manage your money and finances for you your property to take care of all those general matters same rights happen under the guardianship however he's stuck in this court process that requires annual reports it requires annual filings with the court and you'll accountings and so it can be a little bit burdensome and it can be costly and time-consuming to go through the guardianship process nevertheless they have the same rights under the power of attorney and guardianship both meant to take care of you while you're incapacitated now last thing we want to talk about if you're still with us here at this point in the video is what do you do if you are concerned about the agent under your power of attorney or you're concerned that you're stuck in a guardianship with a guardian named for you and in both situations you do feel like you've lost control of your life we're where Frank is running your life for you and you're not happy with Frank's what he's doing for you both on the power of attorney and under guardianship a power of attorney if you have capacity again if you still have capacity you can always revoke your power of attorney tear it up get rid of it notify other people who might be aware of it that you have revoked Frank's rights under the power of attorney that's fairly straightforward and easy now if Frank has gone ahead and got that doctor's opinion that says you are incapacitated or if you're stuck in guardianship in both situations you're unfortunately the you're going to be stuck in a some court process to prove your capacity you're gonna have to try to prove that you do have the ability to make your own decisions that you have the mental ability to understand the effect of those decisions and if you can do that and prove your capacity then you can revoke the power of attorney and get rid of Frank or you can get out of the garden ship the garden ship would be cancelled it'll be terminated and you'd have your your rights back to take care of your own or your own person your own finances at that point both situations are not desirable because again you're stuck in a court process it's uncertain it's difficult to get a doctor to given a that you have capacity when another doctor is already determined you have incapacity that you're incapacitated especially if there's diagnosis of Alzheimer's or dementia or something like that it becomes very difficult now another protection though I want to point out as we finish here is that third parties other people Frank's siblings your other children other family or friends can watch Frank's actions whether under power of attorney or under guardianship and they can come into those processes and file things or or try to protect you there is a court process allowed to challenge a power of attorney challenge the agents actions in her power tourney that allows a third party who is interested in your welfare and interested in your well-being to bring the agent into court and ask the court to review his actions to determine whether they're appropriate under the power of attorney if they're not appropriate his rights would be canceled or the power of attorney and he may be required to repay or things that you've done incorrectly same thing in the guardianship third parties can come in and ask the court to either remove the guardian and replace them with somebody more appropriate or to cancel the garden chip altogether for you if it's appropriate so if you're an elderly person or getting to the point that you want to think about that a point where you may reach incapacity you definitely need to think about this you should come in and at least have get some power of attorney documents put in place where you can choose proactively who you want to name as your agent to make those decisions for you who you trust rather than leaving it to the whims of the guardianship court to determine who the court thinks is best to make those decisions for you in any event if you're stuck in stuck in a power of up to under power of attorney or a guardianship and need help getting out definitely come and see us and we'll talk you through those processes of what needs to be done to help you gain your independence back to gain your capacity back to make those decisions for yourself and to protect yourself either way we're helping to have happy to help here at clear counsel Law Group and we have a lot of experience in helping people with these issues give us a call here at clear counsel we'll be glad to answer any questions you have about this and we look forward to talking to you soon you you