Durable Power Of Attorney Explained
While useful, a power of attorney only allows an agent to act for another, called the principal, during the time that the principal has the capacity or the ability to understand and make decisions. Unlike a power of attorney, a durable power of attorney allows an agent to act for the principal AFTER the principal becomes incapacitated. Generally, this power is granted for a short duration of time in order to complete transactions, sell a house, etc. However, if the principal was to become incapacitated for some reason then the power of attorney would terminate immediately upon the incapacity and the agent would have no further power. Thus, a “durable power of attorney” is essential in situations when the principal is unable to make decisions and needs the agent to act on his or her behalf. More importantly, having a durable power of attorney professionally drafted addresses contingencies that are not included in many standard documents, keeping you out of court and providing you with peace of mind.
Durable Power of Attorney for Assets
A durable power of attorney for assets gives an agent the power to handle financial matters for you if you become unable to do so on your own. The power to sign checks, buy or sell a property, file your income tax returns. The agent may also be able to make decisions relating to retirement plans and insurance policies through a “durable power of attorney” on
Durable Power of Attorney for Health Care
The durable power of attorney for health care, sometimes known as an advanced health care directive, gives your agent the right to make medical decisions on your behalf if you become unable to make such decisions for yourself. Written direction regarding your desire on such issues as life support, medical treatment
Why do I need a Durable Power of Attorney?
Do you know someone who has suffered a stroke, a traumatic injury, a debilitating disease, or some form of dementia or mental illness that has rendered the person incapable of making informed decisions? Did you wonder how their financial and healthcare decisions were managed? Were you concerned that their wishes might not be honored by friends or family?
Should you become unable to make a decision for yourself, someone is going to have to make financial and/or medical decisions for you. Unfortunately, if you have not legally named agents to act on your behalf in accordance with your written directions, then the court will appoint someone for you in a conservatorship proceeding. Once appointed, that person, regardless of relationship or personal interests, will become the conservator over your assets and/or over your person based on a court petition and reports from a court-appointed family investigator. Often impersonal, this costly court process is rather involved and can drag out over the course of several months. Furthermore, once a conservator is appointed, the conservator will have to report to court periodically on what has transpired since the last court hearing, a process that continues until you either regain your capacity or die.
Updating Your Durable Power of Attorney
As with all estate planning documents, it is recommended that your durable power of attorney be revisited every five years to reevaluate your personal and financial situation, as well as to review proper agent designations and inquire regarding changes to the previous estate planning laws.
Other Areas of Practice
Estate & Trust Administration
Advance Health Care Directive