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"My son is an attorney in New Jersey. I am retired and live in Ocean County, New Jersey about 45 minutes away from my son. I needed a lawyer to look at my estate planning documents including Will, Power of Attorney and Health Care Directive. My son recommended Fredrick Niemann in Freehold, New Jersey, specifically Fredrick P. Niemann. I took his advice and met with Mr. Niemann. I am glad that I did. He is a warm and engaging person. No pretense, no airs about him. I immediately felt at ease and we talked about everything that I wanted to do and accomplish with my estate planning. I felt I could open up to him and tell him what was really important to me. He prepared the documents as we discussed and sent them to me in advance to review and approve. Then he scheduled me for a signature session where my appointment was promptly kept and a friendly, positive staff witnessed all of my documents. My son, the attorney, gave me good advice when he recommended Mr. Niemann.
If you are searching for a special attorney, someone who is experienced, likeable as a person and professional, call Mr. Niemann. I felt good about my choice."
—Frank Mollo, Manchester, NJ» Read more testimonials
Durable Power of Attorney
The Durable Power of Attorney can be an excellent planning device for most people. It is particularly useful for individuals who are concerned about physical or mental conditions. The following are the major highlights and benefits of the Durable Power of Attorney (DPA).
What is a “Power of Attorney”?
A Power of Attorney is a document in which you give another person, the “attorney in fact,” the legal authority to act on your behalf. This authority can be limited to a particular asset, a particular transaction or a particular period of time. It can also be general, such that it conveys broad authority to act on your behalf.
How is a “Durable” Power of Attorney Different?
A regular Power of Attorney is only valid for as long as the person signing the document has the capacity to understand its significance and meaning. There are two types of “Durable” Power of Attorney, either of which ensures its validity even if the person has become incapacitated. These types are:
(1) Effective immediately. This type is effective when signed and remains effective, even if the person becomes completely incapacitated.
(2) Effective upon incapacity. This type becomes effective when and if the person becomes incapacitated.
What Powers can be given in a Durable Power of Attorney?
The power to handle all of a person’s assets can be conveyed in this document if it contains necessary language. This includes the power to invest and sell assets, to enter into contracts, to collect and recover assets, to make gifts and deal with all types of insurance, to operate or sell a business, to transact banking, to file documents with the State of New Jersey or other governmental agency on your behalf, including the IRS and to handle other tax and trust issues. Alternately, the document can select special areas of authority and delete others.
What are the Benefits of a Durable Power of Attorney?
In many instances, a Durable Power of Attorney can avoid the need for a conservatorship or guardianship of the estate. A conservatorship or guardianship involves a court hearing in which one person (the “conservatee” or the “incapacitated person”) is found to be unable to handle his or her own affairs, and another person (the “conservator” or “guardian”) is appointed to handle their affairs. A conservatorship or guardianship can be an expensive process (in excess of $5,500), and ongoing court supervision is required.
A properly drafted Durable Power of Attorney satisfies the need for “surrogate management” by having such a person appointed while the giver of authority still has capacity. No court proceeding is required. This document can be considered one of the most important documents to have.
Should “Form” Durable Powers of Attorney be used?
Forms are available but may prove to be inadequate for your needs. If they are used, they should be used only after advice from an attorney with an understanding of their uses and limitations. There are a number of reasons for this warning:
- These documents convey an enormous amount of authority. An “attorney in fact” or agent typically has virtually complete control over a person’s assets. As such, it is frequently necessary to go beyond the forms to build in protections for the signing person.
- Special needs, concerns and limitations often necessitate the drafting of a personalized document.
- Some forms require the person to choose from various options that are included in the document, but do not explain the existence or implications of such choices.
An experienced estate and probate attorney can assist you. The Durable Power of Attorney, if properly drafted, may be one of the least expensive forms of insurance a person can buy. Perhaps even more important than the documents that discuss how we want things distributed upon death, the Durable Power of Attorney specifies how we want things done while we are still alive, but unable to manage our affairs. Anyone who is age eighteen or over can sign such a document.
Call us today to discuss your needs and/or to set up an appointment.
Fredrick P. Niemann
(732) 863-9900