Assigning Power of Attorney (PoA) With Confidence

Incapacity planning, ensuring that there’s a strategy in place if you ever become incapable of managing your affairs, is important.

We all know that. Yet, it’s uncomfortable to think about and therefore easy to put off doing.

A key part of incapacity planning is assigning power of attorney (a legal document giving someone else the right to act on your behalf), but it’s also the biggest hurdle. Giving extra thought to who you choose, and what powers they’ll be granted, can give you the peace of mind to complete your plan with confidence.

Choosing your lawyer

Choosing someone you trust to assign power of attorney is essential. Acting as your attorney involves significant duties and obligations. Your attorney’s overarching duty is to act with honesty, integrity and in good faith for your benefit if you become incapable.

The law lays out specific obligations for the person chosen to hold your power of attorney. Among other things, they will:

  • explain their powers and duties to the incapable person
  • encourage the incapable person, to the best of their abilities, to participate in decisions concerning their property
  • foster regular personal contact between the incapable person and supportive family members and friends, and
  • keep account of all transactions involving the grantor’s property.

The attorney or attorneys you choose to act on your behalf should know these rules, and be aware of other rules set out in the act as well.

For instance, they’re expected to ensure you have a will and, if so, know its provisions. The main reason for this is that your attorney must not sell or transfer property that’s subject to a specific gift in the will, unless necessary.

The act also contains explicit instructions regarding both required and optional expenditures. Examples of the latter include charitable gifts where an incapable person made similar expenditures when capable and so long as sufficient assets are available. Your attorney should also be familiar with rules covering how or when he or she can resign, what compensation they may be entitled to and the standard of care expected of them.

Safeguarding your estate

You can also build a second opinion directly into your power of attorney documents by appointing more than one person. If you name two or more people, they’ll need to act unanimously unless the document states otherwise.

A joint appointment provides a level of protection in that any appointed attorneys must agree on all actions, while a “joint and several” appointment grants flexibility, allowing any one attorney to conduct business independently.

Many people choose to appoint the same people or trust companies to be both their power of attorneys and their executors. Although you don’t need to do so, the same list of key traits – expertise, availability, accountability and trustworthiness – apply to both roles.

It’s also possible to limit the powers granted to your attorney. If you’d like your attorney to act only for a specified time period (maybe a vacation or hospital stay) or in respect of a specific transaction (the closing of a real estate deal), a limited or specific power of attorney is worth considering.

In the case of a general continuing power of attorney, many people want the document to be used only if and when they become incapable of managing their affairs themselves.

Although the document is effective when signed, it is possible to include provisions in the document itself that defers it to a future date or the occurrence of a specified condition (for example, the grantor has a stroke). These are sometimes referred to as “springing” powers of attorney.

Whichever way you prepare your power of attorney documents, careful consideration of who you choose as well as availing yourself of available safeguards will help ensure your confidence in your incapacity plan.

Common Mistakes to Avoid

  1. Making a quick decision: Many people name their PoAs without thinking about their choice’s financial capability, much less their ability to get along with other family members.
  2. Assuming family is always the best choice: It’s far more important to choose someone who truly has your client’s best interests at heart.
  3. Waiting too long: If there’s already a question of diminishing capacity, it’s likely too late to make a power of attorney ironclad.
  4. Not reviewing it: Changing life circumstances and new provincial legislation can make an old PoA invalid.

Plan for Incapacity

Your estate plan doesn’t end with an up-to-date will. It should also anticipate possible future incapacity, which usually means preparing powers of attorney for both property and personal care.

Power of attorney, a legal document that gives someone else the right to act on your behalf, has two main types: one for management of property, another for personal care.

Will and estate planners generally advise preparing both types of powers of attorney. While they are often prepared at the same time as your will, they can be created at any time.

Personal care

With a power of attorney for personal care, you can authorize someone to make decisions concerning your personal care in the event that you become incapable of making them yourself.

You can give power of attorney for personal care if you’re at least 16 years old, have “the ability to understand whether the proposed attorney has a genuine concern” for your welfare, and can appreciate that the attorney may need to make decisions.

Personal care includes decisions concerning health care, nutrition, shelter, clothing, hygiene and safety.

Property

A continuing power of attorney for property authorizes someone to do anything regarding your property that you could do if capable, except make a will.

The law says you’re capable of giving a power of attorney for property if you’re at least 18 years of age, know what kind of property you have, along with its rough value, and are aware of any obligations owed to your dependants.

The term “continuing” (sometimes called “enduring”) refers to a power of attorney that may be exercised during the grantor’s subsequent incapacity to manage property. Ensure the document stipulates that you want the power of attorney to be used only if you become incapable.

What you need to know

A continuing power of attorney for property is a powerful document. Unless otherwise stated in the document, it’s effective when signed, granting considerable power.

In fact, the act explicitly requires you to acknowledge this authority can be misused. And, as part of the capacity test for granting a continuing power of attorney, you must also acknowledge the property you own may decline in value if not properly managed.

A financial institution, land titles office or other third party presented with a continuing power of attorney for property with the restriction “effective only in the event of the grantor’s incapacity” will want evidence of the incapacity.

That evidence could be hard to get. One solution is to set out terms of use in a separate document and have all original copies of the power of attorney held by a trusted third party. You could, for example, direct that document be released only if:

  • You tell the attorney you want him or her to start acting;
  • You are legally declared incapable of managing your property;
  • One or more doctors advise that you’d benefit from assistance in managing your affairs; or
  • Certain family members advise the attorney should begin acting.

No direction could be costly

If you fail to prepare power of attorney documents, it may take an application to court before someone can be appointed to make decisions for you. That can leave you scrambling when you’re in no physical shape do so. Having a will doesn’t help because an executor is only authorized to act after you die.

On top of that, court processes can be both costly and time-consuming. Depending on the circumstances, the Public Guardian and Trustee may have to get involved.

You also lose the opportunity to appoint people or companies of your choosing and aren’t able to establish parameters regarding the actions of your substitute decision makers.

Cost of Filing Bankruptcy Using Attorney – Why Debtors Can Better Afford Bankruptcy Without Attorney

Bankruptcy: costs of filing bankruptcy with attorney, versus cost of filing using Bankruptcy Petition Preparer.

Under the current U.S. Bankruptcy Code or law, the system provides essentially TWO basic categories of outside assistance that a debtor filing for bankruptcy may use – assistance provided by an attorney, and assistance provided by a non-lawyer. And both of these parties come under what is called “Debt Relief Agents or Agencies.” Basically, the non-attorney assistance provider, who also goes by a name such as Bankruptcy Petition Preparer (BPP), preparers the documents upon which bankruptcy is filed with the Court for bankruptcy processing, while the attorney (or, more accurately, the help he hires that does such work) prepares the same set of documents, EXCEPT that the lawyer assistance-provider can supposedly give a debtor “legal advice,” and can appear, on the debtor’s behalf, in the administrative hearing on the bankruptcy case administered by the Court “Trustee” (who is not a Judge, but a court-appointed administrator) that will oversee the bankruptcy case.

Alright, How Do the Services and Fees Compare, Between the Bankruptcy Attorney and those of the Full Service bankruptcy petition preparer?

But what are the Costs of filing Bankruptcy using Bankruptcy attorney? Can debtors afford bankruptcy without lawyers? And, is there really any real, tangible, legitimate difference for the DEBTOR, both qualitatively and nominally, between the Full Service bankruptcy assistance that online-based non-attorney BPP agencies provide debtors, and that which is provided by online bankruptcy attorneys to debtors?

One view of it, popular in certain quarters among non-attorney online providers of bankruptcy filing assistance, is simply that there is “no difference,” or “little to none,” in terms of the actual or qualitative value of their work products for the debtor. The principal argument is that for each side, the actual, principal work that each side does or turns up for the debtor – the relatively simple but time-consuming, paperwork required to be prepared for the debtor’s use in filing for bankruptcy – is more or less basically the same content and quality for the non-lawyer prepared document, as it is for the lawyer prepared. In each case, the argument goes, the same set of documents are turned up by people who are seemingly experienced and trained or skilled in document preparation, and, in deed, in many real instances, are one and the same paralegals who work, or might have previously worked, for the bankruptcy lawyer’s office or the non-lawyer document preparer’s company. Or for both.

But, in any event, in the final analysis, the finished bankruptcy documents that both sides, the lawyer as well as the non-lawyer, provide the debtor, are generally the same and of the same quality. The Bankruptcy Courts generally accept them, process them, and act on them, just the same! In deed, it is a specific provision in the Bankruptcy Code that authorizes and sanctions that such persons may prepare such documents, and not just lawyers!

The Prices the non-attorney helper charges and what the attorney charges for Bankruptcy work

To a hard pressed and destitute debtor, the vexing, bothersome issue, is what justification, then, is there for the great disparity that exists in the prices the bankruptcy lawyers charge for bankruptcy work, relative to what the non-attorney bankruptcy document preparers charge for turning up essentially the same work for the debtor? Bankruptcy lawyers would, of course, advance all sorts of convoluted arguments and conceive all kinds of fancy justifications in defense of their extremely higher and disproportionate charges. That aspect, however, is a matter for another place and another day for us.

But is it a matter of no bankruptcy attorney, and cheap, low-low cost bankruptcy? For the benefit and information of debtors contemplating bankruptcy, just so you’ll at least have an idea, here are the differences in prices between what the non-lawyer assistance-provider charges, and what the attorney assistance-provider charges.

NON-ATTORNEY BANKRUPTCY HELPER’S SERVICES & PRICES

Service: In full Service bankruptcy work, the service of the non-lawyer debt relief agent or agency basically involves their staff gathering the various documents and required tons of papers and information together, and orderly arranging them and preparing all the legal forms and paperwork required by the debtor to file for bankruptcy with the bankruptcy court. For the better ones among them (they are not at all equal, some are far better than others, and quite a number of them are just about worthless!), these agencies use workers who are often highly trained and experienced paralegals (they average several years of work and/or training in the industry), and who are skilled at the preparation of legal documents and bankruptcy papers, and are often well versed and knowledgeable in bankruptcy filing law and procedures. With the Full Service bankruptcy petition preparers (at least those of them who are of the reputable and better categories), the debtor tends generally to get a better service and greater attention, and more one-on-one interaction for his or her case, along with the obvious far lower prices.

The Charges. There is usually a ONE-Time PAYMENT ONLY amount. One of such agency’s charge, for example, is $239 for a Chapter 7 bankruptcy; and $359 for Chapter 13. The price charged by these agencies tend strictly to follow an honest, upfront pricing that’s based ONLY on “per project,” rather than on “per hour.” (That’s in contrast to the attorneys’ charges, which are frequently based on “per hour” hourly rate).

This means that, once a reputable Bankruptcy Petition Preparer (BPP) takes any case from a debtor, you pay the BPP Agency, assuming it’s, say, a Chapter 7 case, just $239, and NOT a penny more on it, ever – no matter how many creditors you have (whether they’re 10 or 20, or 200), or you happen to start out with 10 creditors, but turn up 100 or 200 more later. Or, you have to file some additional papers to get some of your secured debts “affirmed” so you can keep, say, your car, etc. YOU JUST PAY THEM NOT ONE PENNY MORE. PERIOD! Thus, for most debtors, bankruptcy with no bankruptcy attorney assistance, offers the debtor low-low affordable costs and rates and is the only way to go.

The Time line. For the credible BPP, it takes an average of roughly one to two days to crank out the prepared, almost completed package of bankruptcy documents for, say, a Chapter 7 case filing (in a case, that is, where the debtor has hastened and substantially provides them the required financial information and documents necessary to do the papers). As a matter of policy, however, the BPP will hold off furnishing the papers to the debtor right away just so that the finishing touches, corrections and proper checking can be made before the debtor gets them. Bankruptcy, file with no bankruptcy attorney?

THE BANKRUPTCY ATTORNEYS’ SERVICES & PRICES

Service: What the bankruptcy lawyer (that is, the one who is competent and knowledgeable in bankruptcy, as not all attorneys are so equipped) does, is essentially akin to the Full Service bankruptcy type of work that the non-lawyer assistance-provider provides. Here, this involves the lawyer – or, more accurately, a staff of paralegals the he or she might have hired to actually do the work – gathering the various documents and required tons of documents and information together, and orderly arranging them, and preparing all the legal forms and paperwork required to file for the debtor’s bankruptcy with the bankruptcy court. As with the case of the non-attorney Full Service paper preparation providers, these workers who directly do the papers (the ones who are the persons that actually do the work in the lawyers’ the lawyers), are often highly trained and experienced paralegals (average several years of work and/or training in the industry) who are skilled at preparation of legal documents and bankruptcy papers, and often, well versed in bankruptcy filing law and procedures.

Furthermore, in terms of quality of service, with the lawyers, within the ranks of the lawyers who do bankruptcy work in the current times, those who file the bulk of the bankruptcy cases seem to be what one practicing bankruptcy lawyer, Jonathan Ginsburg, the Atlanta Georgia, calls “high volume filers.” These lawyers file 100 to 500 or more bankruptcy cases per month, using largely paralegals and some younger lawyers to do the paperwork, and for one thing, such high volume filers have a reputation for not offering much in the way of personal attention, but charge somewhat smaller fees relative to the “boutique” bankruptcy lawyers (those who file more limited number of cases) – a “smaller” amount of fees which Attorney Ginsburg admits, however, often still “appear to be too expensive” for some people “even [with] the lower fees and generous terms” that such volume filers think their charges represent.

Lawyers’ Charges: For Chapter 7, there’s the “initial” charge of $2,000 – 2,500; and for Chapter 13, the “initial” charge of $4,000 – $4,500. Unlike the BPP’s prices which strictly follow an honest, upfront pricing that’s based ONLY on one-time-only “per project” basis, the attorneys’ charges are frequently based on “per hour” hourly rate. (For example, the attorneys’ “per hour” hourly rate charge, was given as $228 (per hour) for their services in 2002, according to a respected independent research study, the 2002 Survey of Law Firm Economics, made by Altman Weil Pensa Publication).

Further more, as a rule, the lawyers’ fees for bankruptcy (the same, as well, in other issues) vary from lawyer to lawyer, and from one location to another location, even from a lawyer in one block to another lawyer just in the next block. The original charge (it’s usually referred to as the “initial” charge) you’re quoted by the lawyer, is often only for the run-of-the-mill, routine kind of case – the simplest, most ordinary kind of bankruptcy there is. So, if it turns out that you have, say, more creditors than the “average” (say, above 15 or so, depending on which lawyer or what part of the country), it will mean additional charge slapped onto your “initial” quoted charge. And, it can cost even more if it’s a “complicated” case in the lawyer’s opinion.

And further, God-forbid if there’s “litigation” or some creditor challenge to a debt, that means additional cost for you, a BIG one. If you are in a high-priced urban area, that alone will almost certainly guarantee more cost for you in filing for bankruptcy. Also, your lawyer will generally want his payment made IN FULL and upfront before he’ll represent you, especially if it’s a Chapter 7 case.

The Time line. Lawyers generally take an average of 2 to 3 weeks (if not more) to do the bankruptcy paper work for Chapter 7.

BOTTOM LINE:

In sum, for you as a debtor, what you should know is that bankruptcy lawyers’ generally make the allowance for themselves so they’d be able and in a position, after the “initial” fee shall have been paid them, to tack on additional fees beyond the “initial” fees you are quoted when you first signed on. The fee you are quoted by a lawyer in a bankruptcy case (even if you view it as excessive, already), may not be – and is often not – the final charge; you may still have to pay more. And probably will, generally!

Not so, though, with the non-lawyer bankruptcy assistance provider. Here, in contrast, that same very EXACT amount you’re quoted on day one, is the final and ONLY charge you’ll get, almost always, from them on the case – ever! PERIOD! The motto seems to be, no bankruptcy attorney & cheap, low-low cost bankruptcy!

Do you do your bankruptcy filing using the no attorney bankruptcy assistance, or the attorney?. What do you think?

FURTHER INFORMATION
For more on the details of the fundamental differences between the bankruptcy lawyer’s differential services, costs and benefits to the debtor, as compared to those provided the debtor by the non-lawyer helper’s services, or to find out how you or any others may use the services of one of the major non-attorney Debt Relief Agencies in the field of bankruptcy filing to file for your own bankruptcy, please visit this website: http://WWW.Afford-Bankruptcy.Com

The Top 11 Reasons Most Attorneys Don’t Do Marketing

1. Attorneys are trained skeptics.

Marketing requires faith and patience. Attorneys like to prod and poke a marketing effort until they can prove to their great satisfaction that there is no way it can work.

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2. Attorneys love to argue.

Most lawyers are smart. When it comes to embarking on unfamiliar enterprises, like marketing, they find it difficult to “be stupid” and benefit from the wisdom and experience of other experts.

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3. Attorneys are risk-averse.

The most prudent (and safest!) advice attorneys give is, “Don’t do it!” They live in a universe where mistakes result in liability, malpractice and large judgments. In marketing, mistakes are a necessary part of growth. Taking and managing risk are essential elements of marketing and growth. Attorneys like contracts and guarantees.

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4. Attorneys often know little about business.

Law school offered no courses on being business-owners. Any high school business student knows that marketing is an important and mandatory part of any business. This comes as a shock to attorneys who often conceive of themselves as belonging to some sort of 19th century guild. Attorneys were educated in an anti-marketing culture. They learned that they were in a “profession” where refi ned ladies and gentlemen did not make unseemly efforts to secure business. Such people were “ambulance chasers.” (The practice of law is a profession, but that practice takes place within a business entity called “a law fi rm” – subject to the laws of economics as any other business).

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5. Attorneys fixate on costs.

Most attorneys hate it when a prospective client plops themselves down in the lawyer’s offi ce and starts with “What’s all this going to cost?” Yet, that is the first question the attorney asks about marketing. Focusing on costs causes paralysis. Owners of law firms must focus on revenue generation and driving the top line.

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6. Attorneys like to dither.

High “fact-finders” on the Kolbe Index, they like to analyze things. They want to do extensive due diligence. They want to consult with all their colleagues. They enjoy thinking about action more than taking action, with its attendant risks. But action conquers fear. Life rewards action and punishes inaction. Fortune favors the bold.

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8. Attorneys lack perseverance.

If attorneys do get around to trying some form of marketing,
any bump on the road will throw them off. And there are always bumps in the road. Attorneys get excited about a new marketing program, and throw themselves into it passionately. Then after 45 days or so, life happens. A big case blows up. One of the kids gets sick. A check doesn’t come in. The marketing didn’t produce instant riches. The attorney decides he or she made a big mistake and gives up.

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9. Attorneys are uncomfortable with the idea of making money.

Most attorneys are motivated by a desire to serve people. Most subscribe to some form of the Judeo Christian ethic which is full of mixed messages about the pursuit of wealth. Most are conflicted, if not filled with guilt, about the profi t motive. Many secretly think that what they do is not worth the fee they charge, since it does not involve hours of hard, physical labor. These attorneys might be more motivated if they were to think about marketing and growth as “being able to serve the greatest number of people” rather than “making more money” or “being more successful.”

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10. Attorneys define themselves as attorneys — not as owners of a law firm.

This is the single most important error, and it is a contributing factor in all the others listed here. Attorneys do not understand that these are two completely different roles that require two completely different mind-sets and two completely different sets of skills. What attorneys believe to be their greatest asset (their skill at practicing law) is actually their greatest liability. They are too busy working in their business to work on it. In order to grow a practice and succeed, it is necessary for attorneys to conceive of themselves first and foremost as the owner of a business called a law firm, and only secondarily (if at all) as a practicing attorney.

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11. Attorneys are obsessed with what other attorneys think of them.

In no other business does the owner worry about how competitors esteem him or her. Attorneys are often afraid to make the slightest marketing effort for fear of being thought to be “undignified” or “overly aggressive.” Let me assure you that the owner of a lamp store does not care what the owner of the competing lamp store thinks — about anything.