WHAT IS THE DIFFERENCE BETWEEN A POWER OF ATTORNEY AND A DURABLE POWER OF ATTORNEY?

A Power of Attorney (POA) is a legal document that grants authority to someone you choose to take action on your behalf.  The person you chose is called your attorney-in-fact.

POAs are used for a variety of reasons but they are most commonly used when you need your attorney-in-fact to enter into contracts on your behalf.

What makes a POA durable is your desire to allow authority remain with your attorney-in-fact even after you become incapacitated.  Conversely, the authority granted your attorney-in-fact under a general power of attorney is automatically revoked if you become incapacitated.  Put simply, you need a durable POA if your intent is allow your attorney-in-fact to make decisions for you if you can no longer make your own decisions. 

The two basic types of authority granted under a durable POA are: 1) the ability to make financial decisions, and 2) the ability to make medical decisions.

A durable POA for financial matters allows someone to pay your bills and take care of your day-to-day financial issues.  A healthcare POA is designed to give someone the power to accept or decline medical treatments on your behalf.

Both of these documents are equally important and should be included in every estate plan no matter how complex.

One thing to remember, a power of attorney expires at death.  It can not be relied on to manage your affairs throughout settlement of your estate.

DOWER AND CURTESY RIGHTS

 
Dower and Curtesy rights refer to a surviving spouse's right to receive a set portion of the the deceased spouse's estate.  Specifically the marital property in the estate.  Below is an example of the difference between individual or seperate property and marital property.

Property acquired or earned by either spouse during marriage is marital property.  Property earned prior to marriage, gifts, and inheritances are considered separate property.  These properties can be converted into marital property.  Upon the death of either spouse, marital property will be distributed subject to the deceased spouse’s will, rules of marital property, or intestate succession.

The rights of dower and curtesy are a set of rules relating to division of marital property, providing a surviving spouse with a means of support upon the death of the other spouse.  Dower and curtesy rights arise upon the death of a spouse. 

Dower is a wife’s interest in her husband’s property upon his death.  It is a portion of a deceased husband’s real property, usually one-third, that a widow is legally entitled to use during her lifetime to support herself and their children.  A wife may claim the dower if her husband dies without a will or if she dissents from the will.

A husband’s entitlement to a life estate that his wife possessed at her death is curtesy right.  For curtesy, the couple must have a living child capable of inheriting his/ her mother’s estate.

In the U.S., many states have abolished dower rights and adopted rights of inheritance in place of dower.

Nebraska specifically abolished Dower and Curtesy under Nebraska Revised Statute § 30-104.

How do I remove the Facebook page of a deceased loved one?

At the passing of a loved one, removing their Facebook page is last thing on the minds of their family members. But after the passage of some time, the family members usually want their loved one’s Facebook page taken down. Sometimes it is because it is painful to see the page, other times people simply want to protect the information on the page, and most often the family feels enough time has passed and the page is no longer necessary. As an estate planning attorney, people often ask me how to take down a Facebook page of a deceased loved one.

There are a couple of options regarding pages of deceased Facebook users. First, you can request to have the page turned into a memorial page. The other option is to remove the page completely.

OPTION 1 - Memorial Page
Under this scenario, Facebook will remove sensitive information and will only allow confirmed friends to access the Facebook profile. The profile will also no longer appear in the Suggestions section of the Home page. Friends and family will be allowed to leave posts in remembrance. If you want to report a profile to be memorialized, please click here.

OPTION 2 - Remove the Page
The second option is the complete removal of the Facebook page. Facebook with process certain special requests for verified immediate family members, including requests to remove a loved one’s account. This request will completely remove the profile and all associated content from Facebook, so no one can view it. Along with information about the account, the documentation that I generally send to Facebook on behalf of clients includes: a) a death certificate and b) Letters of Personal Representative.

In my experience, this request is much more common than the memorial page option. If you would like to request that Facebook remove your loved one’s account, click here.

I advise people to include in the packet of documents stored with their original estate plan, passwords to social media accounts, email addresses and passwords on credit cards. If that information is readily available to the family, it eliminates the need to request these changes through Facebook or any of the other social media sites and generally makes the process much easier.

Courts Are Not Successfully Monitoring Guardians

Interesting article on some recent court decisions dealing with guardianships

Court Appointed Guardian Pleads Guilty to Theft

An article in the Omaha World Herald on October 4th, 2010, a court-appointed guardian plead guilty. Dinah Turrentin-Sims plead guilty to two counts of theft and two counts of abuse of vulnerable adults. The 59-year old faces up to 50 years in prison when she is sentenced in December.

My clients and those of you that have seen my seminars know this problem is easy to avoid with proper planning. This stuff really happens it is not just an example in my seminar.

If and when the link is no longer active, please email me at bboyum@boyumlaw.com and I will send you a copy of the article.

Rationale for Estate Tax

While I don't necessarily agree with the rationale proposed in this article for an estate tax on the wealthy, it does do a good job of laying the rationale used by the democrats in Congress. Albeit, with a slanted view.

OMB Watch Article

It is debatable whether or not the reasons used to pass the first estate tax in 1916 are still in place. Similar arguments were used to implement income tax during the Gilded Age in American history.

If you are interested in this area, there is an excellent book called The Great Tax Wars - The Fierce Battles Over Money and Power That Transformed the Nation; by Steven R. Weisman.

"The Boss" wins again

With every passing of a wealthy individual this year, the lapse in the federal estate tax is in the news again. The most recent example being George Steinbrenner. With an estimated estate of $1.1 billion, Mr. Steinbrenner does not top the list of billions taking advantage of the lack of estate tax, he does achieve one last victory for himself and his family.

To view Steinbrenner heirs save millions click here

Mr. Dan Duncan passed away in March of this year with an estimated estate of $9.0 billion. The Houston, TX native is listed on Forbes list of wealthiest people at number 74.

For more information on Dan Duncan click here