This document profiles Fredrick P. Niemann, an elder law attorney with nearly 30 years of experience. He is a member of several elder law associations. Mr. Niemann offers legal services related to estate planning, asset protection, veterans benefits, and elder law. He discusses how powers of attorney can be an effective life care planning tool by allowing someone to make decisions on another's behalf if they become incapacitated. Powers of attorney must be in writing and signed properly to be valid legal documents.

1. Hanlon Niemann, PC
3499 Route 9 North, Suite 1F
Freehold, NJ 07728
(732) 863-9900
fniemann@hnlawfirm.com
www.hnwlaw.com
Elder Law, Estate Planning, Asset Protection
and Veterans Benefits Attorneys
Lifecare Planning by Use
of Powers of Attorney

2. Fredrick P. Niemann, Esq.
Fredrick P. Niemann offers his clients nearly 30 years of
accomplished practice in the law. He is a member of the
National Academy of Elder Law Attorneys, the Guardianship
and Conservatorship Committee of NAELA, Monmouth
County Probate and Estate Committee and the Monmouth
County Chancery Practice Committee. He is a certified will
case mediator approved by the NJ Supreme Court. Mr.
Niemann is one of the select few attorneys in NJ, accredited
by the Veteran’s Administration to apply for Aid and
Attendance benefits for Veterans and their spouses. He has
been listed by the prestigious Martindale-Hubbell as “peer
review” rated for 2008. A Martindale-Hubbell rating attests to a
lawyer’s legal ability and professional ethics, it reflects the
confidential opinions of the bar and judiciary.

3. Legal Wit
What do you get when you cross a librarian with
a lawyer? A lot of information you need, but
nothing you can understand.
When questioned by a prospective client as to
what a contingent fee is, the lawyer answered,
“A contingent fee to a lawyer means, if I don’t
win your case, I get nothing. If I do win your
case, however, you get nothing.”

4. Cont.
How can you tell when a lawyer is lying? His lips
are moving.
The first thing we do, Let’s kill all the lawyers
Shakespeare

5. Today’s Topic
EFFECTIVE LIFE
CARE PLANNING
through a
• Power of Attorney
• What Are They?
• How Do They Work?
• Do You Need One?

6. Why have a Power of
Attorney?
• Excellent Planning device for individuals
concerned about their present and future
physical and/ or mental health and
independence
• Allows for continuous decision making
for the benefit of a person who is
mentally or physically incapacitated

7. What is a Power of
Attorney a/k/a POA?
• It is a document appointing another
person ( an individual/ agent) to act on
your behalf with legal authority on your
behalf

8. What are the Formalities
of a Power of Attorney?
• It must be a written document
• Describing the power(s) being giving to the
agent
• The person who is giving the POA must be
competent
• It must be signed
• It must be acknowledged / notarized as a
formal legal document (ie., real estate deed,
will, trust)

9. What is meant by the term
“competent” or “legal capacity”
Generally and simply stated, it means:
Does the person giving the Power
• Understand the purpose of the Power
• Understand the general consequences/
effect of giving a Power(s)
• Understand & approve of his/her agent as
the person receiving the Power of Attorney

10. In addition, the Power of
Attorney must be:
• Voluntarily given
• And, the person giving the POA must
be under no coercion, duress or undue
influence

11. Can you limit a POA
Answer: Yes

12. The Power you give can
be Limited or Unlimited
in Authority and in Time
• Example: The agent’s authority is limited by
the document to just:
• paying bills
• Banking
• filing tax return(s)
• managing/making investments
• representation before Social Security,
Medicare, & Government Benefit Agencies
Cont.

13. Limited Power of Attorney Cont.
• Enter into contracts
• Select and change health insurance
plans
• Select, consult with physicians and
professional advisors

14. What is an
Unlimited POA?
• An unlimited POA allows your agent to
be “you” to act in all ways that you would
act
• Can be unlimited in time as well

15. The Power must specify the
duration of the POA
• Limited time period
ie: One year, one week, one day time limit,
etc.
Unlimited time period
No expiration date specified
Lifetime or until revoked by grantor

16. All Powers of Attorney
can be REVOKED BY GRANTOR
AT ANY TIME WHILE
COMPETENT

17. When Does a POA
Become Effective
• Grantor must decide the start date
• Can be “effective” immediately upon signing or
contingent upon the event of incapacity or
disability
• Examples of incapacity / disability may be:
stroke, heart attack,
Alzheimer’s / Dementia
unconsciousness

18. Which Type of POA
Should You Use
• The answer depends on:
Your health
Your relationship with your POA
His/ Her trust worthiness
How you feel about giving a POA in
general

19. • Other considerations to giving a POA:
• Your independence/ dependence on others,
now and in the foreseeable future
Which leads to the next issue. . .

20. Who should you select to be your POA?
and
• What are the risks and benefits of having
a POA ?
Did you know?
... continued

21. No One Has the Automatic
Legal Right
To Act for Another
• Not a :
husband for a wife nor wife for a husband
Parent for an adult child or adult child for
parent
Not a sibling for a sibling
Here’s a real life story
cont’d.

22. • Clients are husband and wife, mid 60’s
who sign a contract to sell home.
Husband, while cleaning windows falls
off ladder, hits his head, and goes into a
coma. Who legally, can sign the deed to
close title on the house for the husband?
Wife? Children?
Case Study

23. Answer, neither
• Hanlon Niemann petitioned court for a
limited guardianship to allow wife to sign
deed in order to close title and avoid
being in default under contract.

24. Example #2
Adult child, disabled from birth/early
childhood, is now over the age of 18 and
requires public benefits.
Can Mom or Dad handle child’s affairs?
Answer: No

25. What are Considerations
for Selecting a POA?
Select someone:
like yourself
reliable
trustworthy
good judgment
will honor/ respect your values,
instructions, and priorities
(cont.)…

26. Considerations cont.
• Can be a family member or non family
member
• Can be an institution or corporate
representative
• Representative of an institution

27. Benefits vs. Risks:
• Benefits of a well written POA
1. Avoids guardianship or
conservatorship (guardianships and
conservatorships)
(Why does this matter?)
Guardianships and conservatorships are
formal legal proceedings and can cost
$4,500-$7,500 or more for legal,
physician and court fees, ongoing court
supervision and accountings

28. Why Do You Need a
POA?
• Avoids having the court select someone
other than your choice.
• It gives you peace of mind

29. What Are the Risks?
• Your agent steals from you
• Your agent abuses his/ her authority
• Agent makes decisions you don’t agree
with

30. Can you Avoid or Reduce
Risk? (Answer: Yes)
Do nothing
pick a trustworthy person
require a bond
require annual accountings with disclosure
to family or third party
limit effective date of POA to “event of
disability
cont

31. Reducing Risk Cont.
revoke your POA and select another
person (can always revoke, until your last
breath or you are determined to be
mentally incompetent
Consider giving original and copy of
Power to a trusted person or your
attorney who is not the designated POA,
until disability.

32. Miscellaneous Points
of Interest
• Death terminates POA, then Last Will
and Testament or a trust controls assets,
income and final arrangements of your
estate

33. POA can include a power of
the person as well as power
over finances and assets
• This is a very important concept
• Power to decide non financial matters for
a person is critical
Example : life and healthcare decisions
and planning, including
• Selection of a physician
Cont

34. • Care Planner
• Professional Advisors
• Location of residence and
living environment
• Including social, medical

35. Responsibilities of the POA
• The POA must maintain
accurate records of all financial
transactions and may be
required to account to principal
or guardian of the estate

36. • In order for a NJ POA to be durable
(survive your incapacity), it must contain
language “ this POA shall not be
affected by the disability of the principal”
• A POA that becomes effective only
upon disability must clearly disclose this
pre-condition and contain a method
whereby incapacity will be determined
(ie., two independent doctors, judgment
of court, evaluations or similar process)

37. Legal Liability of the POA
to Third Parties
• A POA acts as an agent and assumes the
obligations of a fiduciary under terms of
the power
• An agent can be held negligent to the
principal because of a breach of fiduciary
relationship within scope of the POA
• Reasonable level of diligence, skill and
competence among equally situated
individuals/ agents Cont

38. Legal Liability Cont.
• Agent generally has no special duty to
third persons by reason of
agency relationship
• Liability attaches only for
his own conduct to others

39. Fredrick P. Niemann, Esq
Hanlon Niemann P.C.
3499 Route 9 North, Suite 1-F
Freehold, NJ 07728
732-863-9900
fniemann@hnlawfirm.com
www.hnwlaw.com