The key is to select carefully the person that you name as your agent – known as your “attorney-in-fact”. Despite the label “attorney-in-fact”, the person that you appoint cannot act as your attorney. Nor does the person that you name need to be a lawyer.
Often adult children are selected to fill the role of attorney-in-fact, but children need not be chosen. And, your children may or may not be the best choice. The person that you choose should be trustworthy and comfortable dealing with financial matters.
If you eventually become unable to handle your financial affairs yourself and you have not named an attorney-in-fact via a Minnesota Durable Power of Attorney, then your family may need to go to court to seek a conservatorship for you. That can be an expensive and cumbersome route that is often best avoided.
In Minnesota, a Health Care Directive relates to one’s physical being, whereas a Power of Attorney grants power over one’s financial matters. The Health Care Directive doesn’t take effect until the power grantor is incapacitated, but the Power of Attorney document is effective the moment it is signed.
When you select someone to act as your attorney-in-fact, his or her power ends when you die. The power terminates even earlier – upon your incapacity – unless the Power of Attorney document specifically states that it is a “durable” power of attorney. The power can also be limited by the terms of your document to expire on a date that you specify. In Minnesota, when your spouse is the attorney-in-fact, the power also expires in the event that your spouse files for dissolution, separation or annulment of your marriage.
Minnesota law doesn’t allow a power of attorney document to be revoked by simply tearing up the document. Minnesota law states that any revocation is only effective when the attorney-in-fact is given written notice of the revocation.
It’s a good idea for any Minnesotan age 18 or older to have signed a Durable Power of Attorney document.
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