An essential part of your estate planning is the creation of a Power of Attorney (POA). This is a powerful and helpful document that allows you to name a person, known as an agent, to manage your financial affairs when you are no longer able to do so or if you wish to have them help you at any time. We create DURABLE Powers of Attorney, which means these documents remain in effect even if you become incompetent.
For most married couples, we suggest you create a Power of Attorney naming your spouse as your first choice for agent and another trusted family member as the Alternate. For single clients, we suggest you select an adult child, sibling, trusted friend, or family member. You should trust the person you are choosing to hold this vital job.
An agent under a POA is obligated to use the power only in your best interest and not misuse it for their benefit. The agent is under a fiduciary duty to act consistently with your wishes and overall estate plan. You can revoke a POA at any time, provided you are still competent, by telling the agent they are no longer authorized to act as your agent.
A critical aspect of having a POA executed is that if you were to become incompetent or incapacitated to the point where you could no longer manage your financial affairs, the person you have selected as your trusted agent could take that role over for you.
Without a POA, someone would likely need to petition the Probate Court to be appointed as your Conservator to manage your finances. This public proceeding results in your private life potentially being opened up to strangers. The person appointed to act as your Conservator may not be the one you would have selected.
The Maine Legislature, in an attempt to provide as much protection as possible to our elderly population, has required that the POA contain specific warnings in the document making sure the person executing the POA understands exactly what they are doing and allows them to make selections about what kind of power they want their agents to have.
The POA form is also required to include directions to the agents about how they are to conduct themselves in the use of the POA. Although you may be tempted to use a POA form from the Internet, we would caution you that those forms may or may not contain all the statutorily required language necessary for the execution of a valid POA in Maine.