Durable Powers of Attorney Are Not Simple Forms
By Andrew H. Hook,
Esq.
Oast & Hook, P.C., Virginia Beach and Portsmouth, VA
Durable powers of attorney (DPAs) are extremely complex, powerful,
and flexible legal instruments that create significant legal
authority, duties, and obligations. The scope of the power of
attorney, as well as its provisions, should be tailored to the needs
and situation of the client and should reflect a knowledge of
applicable local law.
Those who use form DPAs ignore significant differences among
individual clients. While there are basic similarities among clients,
everyone's circumstances differ to some degree. Some client issues may
require more oversight than others. Attorneys should make sure the
provisions in a DPA are appropriate for each individual client's
circumstances. his is especially important in today's society with
ever-changing family dynamics. More and more families are breaking up,
as evidenced by soaring divorce rates. The power and authority granted
by DPAs particularly need to address these different family dynamics.
Essentially, attorneys should spend the same time and effort in
counseling clients about, and drafting, DPAs as they spend on wills
and trusts.
Why do attorneys treat DPAs as forms? Estate Planning and Elder Law
have become very competitive fields. Many attorneys believe that the
client has an expectation that a DPA is an inexpensive, simple form.
Therefore, the attorney can spend little time customizing and
preparing a DPA. Estate Planning and Elder Law for many attorneys have
become volume practices. To service the increased volume of work, the
time spent in counseling clients and customizing documents has been
reduced.
An effective Estate Planning or Elder Law practice requires a
strong attorney-client relationship. This relationship requires that
attorneys take the time to understand their clients' needs and
objectives, to discuss with their clients the options available to
accomplish their objectives, and to involve the clients in the
decision making. If attorneys do not take this time and add value to
the process, they will be replaced by software packages,
do-it-yourself form books and non-attorney providers. In fact, in
conducting an internet search using the term “durable power of
attorney,” over one million websites pop up with at least seven
on the first page of results offering forms for sale for as little as
around $25. If the attorney-client relationship is replaced by these
easily accessible, generic form DPAs, the client and the attorney will
suffer.
How do you provide the services necessary for a professionally
prepared DPA within the constraints of a competitive marketplace? The
answer is by developing a system that will permit the attorney to
determine the client's needs, to educate the client concerning the
options available, to draft a customized document that addresses the
client's specific needs, concerns, and problems, and then to assist
the client in implementing the plan in an efficient amount of
time.
For more information, in the Tax Management Portfolios, see
Hook, 859 T.M., Durable Powers of Attorney, and in Tax Practice
Series, see ¶6350, Estate Planning.
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