Archive for the ‘Power of Attorney’ Category

What happens to my social media if something happens to me?

Tuesday, September 26th, 2017
This year, the Uniform Fiduciary Access to Digital Assets Act went into effect in Virginia.  This Act has important privacy concerns for users of social media, emails, and other digital assets.  The bill allows for fiduciaries to manage digital property.  Electronic communications, however, are restricted unless the user consents to such access prior to death or incapacity, or if ordered by a court.
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Who are fiduciaries?

Fiduciaries include agents under a power of attorney, trustees acting under a trust, and executors and administrators of a deceased individual’s estate.  Court appointed guardian and conservators are also fiduciaries.

What are digital assets?

Digital assets are electronic records in which an individual has a right or interest.  It does not include the device on which the records are stored.  Virtual currency, web domains, and computer files are examples of digital assets.

What are electronic communications?

Electronic communications are communications in whole or in part by wire, radio, electromagnetic, photoelectronic, or photooptic system.  It includes text messages, e-mails, and social media messages.  It does not include wire or oral communications, tone-only pagers, communications of tracking devices, or transfer of funds by a financial institution. 

How can I consent or prohibit access?

Consent, or prohibition, of access may be given in the power of attorney, will, or trust naming the fiduciary. 
Some custodians have a terms-of-service or online tools that allow a user to designate a recipient or prohibit disclosure to named persons.  The use of such an online tool will override any contrary directions in the user’s power of attorney, trust, last will and testament, or other writing.  The written consent or prohibition in power of attorney, trust, last will and testament, or other writing, however, overrides a terms-of-service agreement that does not require the user to take affirmative action other than a generic assent to the terms of service. 
In other words, the online tool provided by a custodian of electronic communications or assets will be honored if the user takes an extra step to consent to or prohibit disclosure, or consents by some means other than the generic “I accept terms and conditions” button.  If the online tool does not have this affirmative action, then the estate planning tools can be used to consent or prohibit access. 

Does Mom (or Dad) seem to be slowing down?

Thursday, December 26th, 2013

I love holidays!  I love the lights and the colors and the smells and the gathering of family and friends.  I look forward to each year with anticipation and excitement.

But holidays are also a way of keeping track of the passing years.  It seems like just yesterday I was sneaking down the stairs to see what Santa had delivered.  However, it’s been a lot of years since I was good at sneaking anywhere!

Sometimes it is easier to tell when a parent is losing his or her edge when we only see them on the holiday.  When we talk on the phone, we don’t see the extra time it takes for them to get out of a chair.  And perhaps we have never noticed before that there are times when they go into a room and seem to forget why they went there.

Now might be a good time to talk with your parent about making sure they have all of their estate planning documents in place and current.

Most people are confident that they need a Will to distribute their ‘stuff’ after their death, but what about the other documents that will help them as they get older?

A General Durable Power of Attorney is one very valuable document that must be signed while the person has the cognitive ability to do so.  A Medical Directive (also known as a ‘living will’) is another.

These documents can go a long way to improve the quality of life of our parents (or ourselves).  They also make it easier for those family members that will need to help the elders in our lives.

And at this time of year, when we are all thinking about gifts, perhaps we should consider the gift of peace of mind….for ourselves and for our families.

We would love to meet with you and discuss the various parts of an estate plan and how we can help you achieve a little more peace of mind.  Please consider calling us at 757-234-4650 to schedule an estate planning consultation.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

I have my dead mom’s Power Of Attorney, can I sell her house?

Saturday, November 9th, 2013

I have had a few questions lately from people who say they have a Power Of Attorney for their parent and the parent recently died.  Usually, they want to know if they can use that Power Of Attorney to sell their parent’s house.

A Power Of Attorney allows the agent to do anything that the principal can do.  In the situation above, the child was named as the agent and the parent was the principal.

If we think about it logically, a principal can’t do anything after they have died, and that is exactly what happens with the Power Of Attorney.  It dies with the principal.

The next question is ‘what happens to the house?’  That would depend.

If the house was deeded with some sort of survivorship option, then the house would belong to the survivor automatically and would not be considered as part of the deceased’s estate.

If there was a Will, the Will would describe what would happen to assets in the deceased’s estate, including the house if that was part of the estate.

If there was not a Will, the statutes covering intestate (without a Will) division of property would control.  In Virginia, the house would then go to the legal heirs of the decedent.

The Virginia probate process is relatively easy in comparison to some other states.  You can contact the Clerk of the Circuit Court in the jurisdiction (city or county) where the deceased lived and the probate clerk can often be of great assistance.  Or, you can contact a probate attorney to help with the situation.

But remember that after the person dies, the Power Of Attorney terminates automatically and is no longer effective at all.  Having a complete Estate Plan can help eliminate this problem situation.

If you have any questions about this or any other legal matter, please contact the office at 757-234-4650 to schedule a consultation.

When should I get a Power of Attorney?

Wednesday, June 19th, 2013

I get this question fairly often.  People will ask if they should think about getting a Power of Attorney because they are getting ready to retire, or they have retired, or they are getting close to age 60, or 50….or whatever.

I always give the same answer….The best time to get a Power of Attorney is NOW!

We all think we are going to live forever, but we don’t.  We all think we will be healthy for our entire lives, but often we don’t.  Unfortunately, if you wait too long, you can’t get a Power of Attorney anymore.

In order to get a Power of Attorney, you need to be competent.  That means if you wait until you have dementia, it is too late.  That means if you are in a car accident and in a coma, it’s too late.  That means that if for any reason you are not able to take care of your own affairs, you are probably too late.

A Durable Power of Attorney will allow the person you designate as your agent to take care of your affairs.  That person can write checks to make sure your house payment, utility payments, car payments, credit card payments etc. are all paid on time.  There are also a number of other powers that the document can provide based on how it is drafted.

Some people are afraid to give someone else that authority while they can still take care of themselves, but if you wait until you are not able to take care of yourself, you are usually not legally competent to sign the Power of Attorney.

What can you do?

I often tell people to go ahead and draft the Power of Attorney and then keep it in a safe place until it is needed.  Just because the Power of Attorney is drafted does not mean that you need to hand the paper over to your agent.   You can put the Power of Attorney document in a safe place and let the agent know where it is after it is needed.

Also, remember that the Agent under the Power of Attorney must only do things which are in your best interests.  And if you are still competent, you can watch over their actions.  If you can’t trust the agent to do the right thing while you are there to watch over them, how can you trust the agent to do the right thing when you  are not able to watch over them?

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Getting Ready to Retire?

Sunday, May 19th, 2013

If you are getting ready to retire, you know that there are lots of things to consider.

Do you want (or need) to move?  Will you be staying in the same town?  Does a different state offer a better tax environment?  Will your finances allow you to do the things you had planned?  How will you invest your assets to make the most of your retirement funds?

As a lawyer, I can’t really help with a lot of these questions.  But there is one thing that most people don’t think about when they are planning to retire and that is something I CAN help you with.

Everyone who is thinking about retirement should think about executing a General Durable Power of Attorney.

The excuse of ‘I still have lots of time’ just isn’t valid anymore.  If you are getting ready to retire, you need to start thinking about what is going to be happening in this last phase of your life.

Someone asked me recently what was the one biggest mistake people make regarding elder law.  The answer was easy, that mistake is not doing the Power of Attorney early enough!

A Power of Attorney allows you to designate someone else to make decisions for you… to make sure your bills are paid….and to make sure that your financial life is going the way you want. A Power of Attorney can allow someone else to make the needed decision about where you will live if  you are not able to make that decision yourself, and to sign the entry forms for assisted living or a nursing home on your behalf.

A Power of Attorney can also eliminate the need for a court to order a guardian or conservator.  And, if there is a situation where the court really needs to make that decision, the Power of Attorney tells the court the name of the person that you wanted to hold that position.

The agent under the Power of Attorney has to make decisions and take actions that are in your best interest, and while you are able to keep an eye on things, there should not be a problem with what is being done.  If you don’t like the way your agent is taking care of your affairs, and you are still competent, you have the right to rescind the Power of Attorney.

The big problem is that the Power of Attorney must be established while you are still competent and capable of making that decision.

I have adult children come into my office frequently saying that they need a Power of Attorney because their Mom or Dad has dementia and is no longer able to care for themselves.  It is very sad when I need to tell them that it is too late.

If Mom or Dad is already suffering from dementia, it is very possible that they are not sufficiently competent to execute the Power of Attorney themselves.  So, instead of a relatively inexpensive process to draft and execute the Power of Attorney, the family is faced with the more expensive and longer process of filing a lawsuit to establish the guardian and/or conservator for the elderly parent.

The parent who is already confused and frustrated by their condition now needs to face a hearing before a judge who will tell them that they are not competent to take care of themselves.  This is often a very sad, but necessary step in the lives of the elderly.

It could be fixed with proper planning that includes the establishment of a General Durable Power of Attorney.

So, while you are making all of your other retirement plans, be sure to add an appointment with an Elder Law Attorney to review your situation and find out if you have the proper estate planning documents in place.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.