THE DURABLE power of attorney is regrettably unappreciated and undervalued by most lawyers. This attitude can be measured by comparing the time spent drafting the power of attorney and the time spent drafting a will or trust. Attorneys should expend as much time and effort in preparing the power of attorney as they put into the client’s last will and testament or trust agreement.
The amount at risk can be equal under each document, and the authority exercised by executor or trustee or agent under power of attorney can be indistinguishable other than whether their actions are pre- or- post-mortem. And since the agent under power of attorney will act while the principal is alive, the consequences are arguably more serious than those of an executor under a will. Unfortunately, if there is an error in the drafting, it is likely not to be detected until it is too late, when the principal has lost the capacity to make conforming changes.
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