(Durable) Power of Attorney

Durable Power of Attorney

Public or Private

What is a Power of Attorney?


A Power of Attorney is a legal document between two adult persons. The person who originates this document is known as the "principal." The person they nominate is known as the "agent." Once the principal fills out and signs the appropriate form, he or she can be legally represented by their agent in one or more legal matters. The principal decides on what matters their agent may act upon on their behalf. For example, he or she may specify in the POA that their agent only has the power to conduct matters that pertain to their real estate, file income tax forms; deposit, borrow, or transfer money in banking transactions, handle insurance claims, et cetera. A Limited Power of Attorney gives an agent legal rights to handle certain matters. A General POA gives the agent the power to handle any and all business matters.

Power of Attorney documents are commonly used in business. For personal matters, POA's are normally used only when the principal is unavailable in some way. For example, let's say you have a Power of Attorney written up with your spouse Kate as the agent. If you're out of town on business, Kate can renew the license plates on your car, cash your pay check, pay your bills, et cetera, if you have a general purpose POA. That is, a POA that gives your agent the strength to handle several affairs, and not just one specific one.

A warning is that just because you are married doesn't mean that your spouse will automatically be authorized to handle your legal affairs. They do have certain legal rights over matters you both own jointly. Joint bank accounts are one example. But, that's usually as far as it goes.

Spouses who want to make sure their husbands or wives can take care of their business, and vice versa, can have a Joint Power of Attorney drawn up.

There's a second type of Power of Attorney document you can have that kicks in if you become incapacitated or disabled and you can't handle your own affairs. It's called a "Durable POA." Have one of these written up, and you can appoint someone you trust to handle your legal affairs if you become ill. Otherwise, the courts will have to appoint someone to take care of your business while you're infirmed.



Public Trustee Benefits

  • Independence
  • No Upkeep
  • No Time
  • Investment Advice

A public trust company provides trust services to the general public. They vary in how widely they advertise their services, but they serve multiple families, at minimum, and serve the general public so to speak. The two benefits of a public trust company are a reduced workload on your family, and independence from the beneficiaries. The downside is the increased cost versus a private option. Trust companies generally charge a percentage of assets under management. Over time, this can add up.



Private Trust Company

  • Lower Cost
  • Increased Control
  • Enhanced Privacy
  • Simple to Start
  • Simple to Maintain

A private trust company serves only one family. It allows increased control, lowers cost and beter protects your privacy. The only downside is having family involved in intimate family matters. Sometimes tough decisions are better handled by an independent party who can claim their hands are tied.

When should you use a Public vs. Private Trust Company?


Public trust companies offer better continuity over time and assistance with trustee duties. These factors matter when a trust is established for perpetuity, or there is not a lot of family willing or able to take on the duties of being a trustee.

Another benefit is the independence of a public trust company. There are situations where you may not want the beneficiary to retain influence over the trustee. For example, if you have several children but one suffers lifestyle problems. You do not want your spendthrift child harassing the trustee (their sibling) everytime they want money. Nor does the sibling want to be in the position of controlling their sibling's money. This can easy spoil the relationship. In this case an independent trustee is clearly preferable.

Private trust companies (PTCs) provide many benefits and are often preferable for self-settled trusts. They allow greater control and don't require sharing information with a third party. This is especially appealing given recent large data breaches such as the Panama Papers.

####TITLE#### Trustee is Fundamental Position for Estate Settlement ####ARTICLE#### An estate Trustee performs important tasks pertaining to estate settlement. This individual acts as the estate fiduciary and manages transfer of inheritance property to beneficiaries. They are also in charge of settling the decedent's estate according to directives provided in the last will and testament. A Trustee needs to be selected to oversee all types of trusts including testamentary, irrevocable, and living trusts. The individual chosen for this position needs to be reliable and someone that can be counted on to make appropriate decisions for the good of the estate. They should possess good financial skills and capable of multi-tasking and meeting deadlines. Irrespective of the type of trust established, each consists of three parties that include a Trustee, Trustor, and Beneficiary. The person that sets up the trust is the Trustor. The person managing the trust is the Trustee. Beneficiaries are the people or organizations that receive property and inheritance money from the Trustor. There are a lot of ways to setup a trust and most require help from a lawyer. Each type of trust offers unique benefits. Some help reduce estate and inheritance taxes, while others provide cash to cover the cost of taxes. Some provide money to beneficiaries while the decedent is still alive, while others make financial distributions for years after the date of death. All property that is put into a trust is removed from the estate and not required to endure the probate process. Probate is used to settle estates that have not been transferred to trusts. Assets held in probated estates cannot be passed along to heirs until all other facets of estate settlement are completed. Writing a Will is essential whether an estate is safeguarded by a trust or required to pass through probate. The Will provides directives regarding how the estate needs to be settled, as well as appointing an estate agent and naming beneficiaries. Trusts are one of the better choices for protecting estate property. Not only are assets exempt from probate, they are usually exempt from inheritance and estate tax. Furthermore, settling an estate trust normally takes less time than settling a probate estate and inheritance property can be transferred to heirs more quickly. For the most part, trusts are only necessary with the value of the estate is greater than $100,000. Lesser valued estates can utilize estate planning strategies that offer the same advantages of trusts. Setting up a trust is a relatively simple process, but will require assistance from an estate planning lawyer. This is particularly necessary when setting up an irrevocable trust. This type of trust offers a great deal of flexibility during the planning phase, but once in place an irrevocable trust cannot be changed without making a court appearance. The cost to setup a trust can range from less than $100 to over $1,000. Much depends on the type and value of assets and the type of trust being established. Many people who only require a living trust and last will and testament may find it advantageous to use legal services such as LegalZoom.com. Irrespective of whether you use the services of an online provider, estate planner, or probate attorney it is a good idea to organize financial records and make a list of estate assets. It is advisable to discuss plans for designating a Trustee with the person before appointing them to the position within the Will.

Related Reading


Estate Planning Process

Learn what estate planning is about, from asset protection to planning your legacy.

Asset Protection Trust

Place your assets into a trust and outside the reach of creditors.

Private Trust Companies

Increase privacy and reduce cost by forming your own trust company.

Asset Protection Strategies

Learn various strategies for protecting your assets.