The power of attorney is an extraordinarily useful tool in the event of incapacity because it can avoid the need for the costly, time consuming and intrusive guardianship. But, it has morphed into such a complex document that it requires the assistance of an attorney to assure that it is properly executed.

The authority of the agent to make gifts of the principal’s assets is the issue that has caused the document to become so confusing. Traditionally the principal could monitor the actions of the agent and would be aware of any improper actions. The advent of the “durable” power of attorney, where the agent could continue to act even if the principal lost capacity, led to concerns that the agent could act improperly and the principal would not be aware or could not object.

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