0:21 foreign States weekly I'm your host Kevin bemel and we are here every Bunny at 10 A.M Pacific Time 1 p.m eastern time and over in Europe it must be what almost uh 9 00 p.m I'm guessing somewhere around in there and on into Asia and and uh I guess in Japan it's probably the next day already because they're on the other side of the International Date Line so thanks for being with me today we are
0:56 here every Monday to talk about matters relating to trusts and Estates and probate all of those issues involved in Estate Planning and the working out of uh of of the states and both for those who um need to do their Estate Planning and for people who want to extend their Professional Services to people who need Estate Planning and estate settling services so that's that's our topic for for today so uh or our topic for this
1:34 show I should say our topic for today is Powers of Attorney so you know I remember when I first got out of college I went to work for an attorney right a lawyer and uh you know I started learning things about the law eventually I became his his law Clerk or the the law clerk for the firm because I work for both him and his associate and I learned about this I learned about the distinction between an attorney at law and an attorney in fact
2:11 right so just a you know a little bit of of background I think is is is useful because I couldn't it was like wait an attorney is an attorney right or an attorney is a lawyer so that's not true an attorney is someone who acts for another so an attorney at law is someone who's acting for another with respect to the law a lawyer in other words but an attorney in fact is a type of agent where that person acts in place of in
2:47 the stead of the principle okay so you so when you have a power of attorney you've got a principal that's the person who's giving the power and you have the attorney in fact or the agent that's the person who's getting the power in is now going to act on behalf of the principal now this is important because in the estate planning process there may very well be a need for various Powers of Attorney um to to be drawn up and used depending
3:22 on how your estate plan is set up and as a professional you may need to be an attorney in fact if you are not a lawyer and and that but that attorney in fact comes with uh duties obligations Etc so let's let's do is let's do as we do do as we do uh that's a that's a silly thing anyway uh we're going to go ahead and share my screen here this is um our uh our PowerPoint for today trust and estate weekly there you go and uh I
3:57 always like to make a brief mention of the three pillars of attainment because all of the way to wow shows are based on this concept we deal primarily over here in the Pursuits pillar and in the finances uh realm however when we're dealing with Powers of Attorney we're inevitably going to be dealing with relationships okay who is going to be our attorney in fact is it going to be a family member or is it going to be a friend or a colleague that's that's something that we're going to have to
4:32 determine there we go okay so let's uh let's talk about what a power of attorney is so I mentioned this just a minute ago under a power of attorney a principal appoints an inter an attorney in fact or an agent this is someone to act on their behalf okay now why would someone need an attorney a a a an attorney in fact to act for them well it may be that
5:07 they cannot be present to do something okay so look now here in California when we close an escrow transaction we have when we close a real estate transaction I should say we have escrow so the parties do not need to be physically present to close the transaction but there are I still some states where you have face-to-face closings where uh the the the the buyer and the seller meet essentially across the table and they pass documents and funds back and forth across the table and there's a formal closing so if if one of the
5:45 parties to the transaction cannot be there typically their lawyers will represent them but there may be a need for them to be there and they can't be so then they would appoint an attorney in fact to be there in their place okay now another situation where a power of attorney might be necessary is if the person has become mentally incompetent okay now let's be clear here someone who's mentally incompetent cannot appoint an attorney in fact okay so the attorney in fact the attorney you know
6:21 the attorney in fact was uh established was appointed prior to the person becoming mentally incompetent and because of how that power of attorney was set up it survives the per the principle becoming mentally incompetent okay so we're going to talk a little bit about a little bit more about that when we talk about types of Powers of Attorney okay but but just keep in mind that a person has to be competent at the time they uh
6:57 establish uh at the time they appoint an attorney in fact okay now the person acting as the attorney in fact is a fiduciary now I've talked in other shows about what a fiduciary is but let's let's go over it here because it's it's important to understand this for both the principle and the agent a fiduciary must act for the best interests of the principal always period you know full
7:32 stop as we say the fiduciary can never put his interests above that of the principle okay this is a this is a higher level of obligation than for example you know a retailer might have all right if you go into um Banana Republic and you're looking at I don't know a pair of pants and you know the sales person is like oh yeah that looks terrific right they have no obligation to consider your best interests above
8:07 theirs okay their obligation is to the store it's to get you to buy the Garment and that's that's it all right now if they were your attorney in fact right and and I don't know they looked horrible presumably they couldn't say oh yeah they look great right um because that's not to your benefit to look you know horrible okay I'm I'm being somewhat tongue-in-cheek but but understand that this this fiduciary obligation is very very odd okay and and it is a legal obligation it's I mean
8:42 it's a moral obligation too um I think we could effectively argue but breach of fiduciary obligation is a serious serious breach okay and it and it will expose the the the agent in fact I'm sorry the attorney in fact to a great deal of liability in fact they could be liable not only for whatever loss they cause their client but they they could be sanctioned as well depending on you know why the why the breach happened how it happened was it intentional was it not Etc okay so
9:20 the the attorney and faculty agent is a fiduciary now Powers of Attorney can be either limited or general okay a limited power of attorney as its name States gives the attorney in fact only gives alternative fact uh authority to act only in specific circumstances that are delineated in the power of attorney okay so for example
9:55 um someone could establish a power of attorney that allows uh the the attorney in fact to handle routine banking matters for them okay maybe they're just not as mobile as they used to be excuse me and and so it's difficult for them to get to the bank and so the uh the attorney in fact has the authority to handle banking matters okay that would not give them the authority to sell their house buy a car for them or anything like that okay it's it's limited in scope okay that's as uh
10:32 distinguished from a general power of attorney where the person the the attorney in fact can basically do whatever the principal could do okay so an attorney a general power under a general power of attorney an attorney in fact could do routine banking could sell the house could buy the car could do all virtually anything okay now uh there are certain institutions that will not accept a general power of
11:08 attorney I in other words um there are certain Banks where if if I was someone's attorney in fact under a general power of attorney they would not let me walk into that bank and close the account and get a check for all the money okay they would want to see in the power of attorney the specific authority to open bank accounts close bank accounts you know whatever whatever it was that I was trying to do okay so in some cases you'll see General Powers of Attorney where they also specify
11:45 specific um uh uh specific tasks sounds so uh sounds so trivial but but certain activities that the attorney in fact can do and in order to make sure that um that that you know the various uh financial institutions Etc will accept the power of attorney okay um and they may say something like including but not limited to the following um you know the following powers okay now
12:21 um and and we're going to talk a little bit about a little bit more about uh limited versus General Powers of Attorney uh too when we talk about uh types of Powers of Attorney okay last on this on this slide is the authority of the attorney in fact to act always ends when the principal dies okay a power of attorney cannot survive death of the of the principle okay it may survive the principle becoming mentally incompetent
12:57 to go back to a point we covered a little while ago but but when the per when the principal dies that's it the power is done okay and and now you know we go into essentially an estate situation and whoever is empowered to handle the estate for the deceased principle now that person uh you know has the power and authority to to act on behalf of the estate okay now by the way it could be the same
13:32 person the person could be an attorney in fact while the person is alive and could be a trustee under the par under the uh I should say a successor trustee under the principal's trust okay or it could be a trustee under the principal's trust as well okay the the the two could be combined in one person okay but it's because the person has both uh sort of you know buckets of authority if you will that the person can continue acting but once the
14:07 principal dies they're acting under a different set of authorities not the power of attorney okay all right let's go on to the next one this is going to click yeah okay here we go all right so let's look at types of uh Powers of Attorney um probably the well I don't know if it's the most common I'm not going to say that because these days it's it's it's it's hard to say but um the first one we're going to talk about is a non-durable power of attorney okay a non-durable power of attorney the the
14:43 power of the attorney in fact to act ends if the principal becomes incapacitated meaning mentally incompetent typically okay so in this case you don't even have to wait for the the principal to die for the power of attorney for for yeah for the power of attorney uh to essentially cease to be effective once the principle is mentally incompetent or otherwise incapacitated that's it power of attorney done okay
15:19 the the um uh attorney in fact can no longer act for that principle okay now contrast that with the durable power of attorney okay in a durable power of attorney the attorney in fact continues to have authority to act for the principal even after the principle becomes incapacitated okay so just to go back for a moment and clarify right when we were talking about power somebody said the the um attorney in fact can act when the
15:56 person is mentally incompetent that is the case if the power of attorney is a durable power of attorney meaning it continues to be um enforce after the the principle becomes mentally incompetent okay so so that that's one big distinction okay now then you have something called a springing power of attorney this is a power of attorney that lay these sort of dormant if you will there's there the the attorney in fact has no power to act
16:35 until a specific condition is met okay so for example um you see these in estate planning where Health Care decisions need to be made for someone who is who is incapacitated but alive okay and who's going to make decisions medical decisions for that person so that so A springing power of attorney will give the authority to an attorney in fact to make decisions about that
17:10 person uh once you know once that person is incapacitated are they you know if if they code are they going to be are they going to use extraordinary means to resuscitate the person um you know what what kind of Health Care are they going to get it's Etc et cetera et cetera there's as you know obviously Healthcare can be oftentimes is very very complicated these days who's going to make those decisions and and by the way there could be religious aspects to these decisions Okay so the of someone's Faith someone's
17:47 religion may require them to be resuscitated so that um it's there's not a what what might be looked at from a religious standpoint as a sort of frivolous taking of life okay but at what point would the efforts of the doctors and nurses to resuscitate this person become um disrespectful enough to the point where it would be permitted to you know let the person die okay so a springing power of attorney May Point as an
18:24 attorney in fact a reli a religious um uh I don't want to say person like like a a priest or a rabbi who is qualified to make that call okay so that's a springing power of attorney when a specific condition is met then the power of attorney becomes active and the and the attorney and facts authority to act uh begins okay a financial uh Power of Attorney now this is typically limited this is a type of limited power
18:59 of attorney uh that allows someone to make um uh financial decisions or and engage in financial transactions on behalf of the principal okay so I mentioned uh you know a little while ago uh someone having a power of attorney to handle routine banking matters that could be a financial power of attorney okay typically they will be broader so they will allow Financial transactions but for example they wouldn't allow the the attorney in fact to make medical
19:35 decisions in the sense of whether the person gets resuscitated if they code and all that kind of stuff okay so it this is a limited power of attorney although it is still quite broad depending on the extent of of the principles finances okay and then finally there's a medical power of attorney and and as it says here on the slide it gives the uh principle the authority to make Health Care decisions okay and and this is distinguish this from a
20:11 springing power of attorney that's done for medical reasons and that a medical power of attorney may give the attorney in fact authority to make decisions from the moment that the attorney and from the moment that the power of attorney is created okay so a springing power of attorney by the way doesn't have to be only medical matters it could be others as well but if you could have a springing medical power of attorney which means the the attorney in fact can
20:47 only make decisions about the medical the medical situation of a principal once a certain condition is met or you could have a medical power of attorney that gives the the attorney in fact that Authority right from the get-go okay so these are not mutually exclusive uh categories okay um and by the way the springing power of attorney um May you know it's probably going to be a durable power of attorney as well okay so something may happen to trigger
21:23 the springing power of attorney and the person may not necessarily be incapacitated per se it just may be the person's wish that if they have to go in the hospital they don't want to be burdened with making Health Care decisions and so you know they go into the hospital that that triggers the springing power of attorney but that's bringing the power of attorney is a durable power of attorney and now if the principle should become incapacitated the the attorney in fact will still have the authority to continue making decisions so you can so you can see how
21:59 these can be sort of you know mixed and matched so to speak into many different variations okay and it's not I mean although the ones I've seen typically are labeled as durable non-durable springing whatever I it really the label isn't necessarily germane okay what's what's important is what does the body of the power of attorney give the the attorney in fact the authority to do the power to do and when okay those are
22:34 basically the two main issues relevant in a power of attorney let's see we're doing here we're doing okay on time great okay so now I want to take uh I want to take just a minute to talk about a military power of attorney okay for for those of you who are in the military whether you're um active duty or whether you're a reservist um oftentimes if the service member is going to be deployed outside of the 50 United States they will essentially be told by their
23:09 unit hey make sure your spouse has got a power of attorney okay and and the reason is because if if the service member is deployed you know wherever the Philippines um um Iraq Syria wherever they are uh orn of Africa okay it can be difficult for the spouse who's at home to get things done without their service member uh spouse being there and so in order to handle day-to-day Affairs okay the the
23:46 deploying service member will give his his or her spouse a military power of attorney that will allow the spouse to do whatever needs to be done in their absence okay so um this is It's it could it's it's sort of a almost a general power of attorney but it's for a limited period of time basically because it's it's typically used only while the service member is deployed once they get back the the you know the power of the attorney in fact the spouse typically to
24:22 act will terminate and things will go back to normal where they both have to be involved in handling whatever day-to-day Affairs there are to handle okay so um you know this is It's typically going to be a general power of attorney um um and it's but it you know it's it's not a springing power well it's kind of like a springing power of attorney because um because it doesn't it's usually not given until the service member deploys although technically it's not really a springing power of attorney because they'll set it up and it'll be it'll be
24:57 valid as of a certain date when you know when the service member um is is unable to hand handle day-to-day Affairs okay so that's a military power of attorney and I think that's that's what we've got for today yep we're good okay so where do you get help here you go here's just some links here I I just I show this just so you so I I remember to mention yeah that my contact information will be in the show notes if you have any questions feel free to send me an email drop me a comment in the various social media I mentioned these three but you can also
25:32 reach me through uh telegram there's a way to Wild telegram group um you can reach me through Pinterest uh there's a I'm on Instagram as well so you can always message me through those if you have any questions comments criticisms feel free um always happy to hear what you have to say and uh particularly if you think I've said something wrong by all means let me know and if I have to issue a correction I will and and uh and and we'll do so in your name if if you uh
26:07 wish that to be the case a couple of notes before I sign off one is if you are involved in estate trust and probate matters and and have something of Interest informative for the audience do let me know I'll be happy to have you as a guest on the show so uh it's it's it's uh it's fun to be able to talk with professionals like I had Paul Hilton on um a few weeks ago he was an estate planning attorney we have some other uh guests coming up uh you know later later
26:43 in the year um so and and and so uh always happy to get to uh you know have have a guest on for for the half hour for a half hour conversation tomorrow is my show business lessons from the military hey that's at 11 A.M Pacific Time 2 p.m uh eastern time and then an hour in for Central and mountain time and we're gonna we're gonna go after having had guests and and some um digressions we're gonna go back to talking about Marine Corps War fighting
27:18 Doctrine and and applying it to the business world and so I hope you'll join me for that ongoing conversation and then on Wednesday at 12 30 PM West Western time Pacific Time 3 30 p.m eastern time is my show people making money and I have a guest and I don't want to mingle his name um but he's with honorable marketing this is a digital marketing service Army veteran and so I encourage you to come in here um Paul's story
27:54 um it's interesting Paul Hilton Paul I think it's macawits but I'm I'm not 100 sure how Paul pronounces his last name he's a new friend of mine um but I think you will gain a lot out of first of all seeing how Paul's career path has developed as well as hearing about digital marketing and and apple aspect of business today it's so important to uh getting our success and then next week on Monday at 10 A.M we will will be the next edition of trust in the state weekly and we will start
28:29 all over again so I do thank you for for joining me here's uh the legal stuff and it was let's go ahead and stop out of the share and so thank you very much for joining me I I hope you uh enjoyed the show and that you got something out of it do you know if you know people who are involved in Estates and Trust please pass it along to them and uh let's let's all learn together and and and benefit each other and um if you think about it if you're not a subscriber maybe hit
29:04 that subscribe button on YouTube and that way you'll always know when a new episode posts not just of trust in Estates weekly but of of all my shows so thanks again for joining me I hope you have a wonderful rest of the day and look forward to seeing you tomorrow and the rest of the week