Any time that a legal instrument increases in popularity, litigation over that instrument also increases in popularity. That is just the way that the legal world works. In estate planning, we are currently seeing an increase in litigation over General Durable Powers of Attorney as more and more people are making them a part of their estate plans.
Of course, General Durable Powers of Attorney are designed to avoid court proceedings. They are usually there so that when a person becomes incapacitated and unable to handle his or her own affairs, guardianship proceedings are not required so that someone can handle the person’s finances.
The problem is that too many people are not choosing appropriate attorneys-in-fact in their General Durable Powers of Attorney. The attorney-in-fact must be someone who will act in the principal’s interests and not in his or her own. It should also be someone who will make similar decisions to the principal. If not, then litigation over the actions of the attorney-in-fact can result.
Before you get a General Durable Power of Attorney, think carefully about who to designate as an attorney-in-fact. Do not just pick the first person you think of. If you are not sure whom to pick, talk the matter over with your estate planning attorney.
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