A durable power of attorney is a legal document authorizing someone to act on your behalf that remains in effect even if you become incapacitated.
A durable power of attorney is an important estate planning tool that helps you plan for the unexpected. This article will explain what a power of attorney is generally, as well as the advantages of having a durable power of attorney in place.
In short, power of attorney is a legal agreement that authorizes another person to make decisions for you.
POAs can vary greatly depending on your situation. Some give the agent (the person you authorize to make decisions on your behalf) great control over everything from your healthcare decisions to your finances. Others limit the agent’s authority to one specific area, such as managing your bank accounts.
Powers of attorney have several uses – for example, they can make it easier for others to make business decisions on your behalf or take care of your affairs while you’re out of the country. POAs are most commonly used, though, to give someone else (usually a family member) the authority to manage your affairs when you become elderly or ill and unable to manage them yourself.
If you are considering between the different types of POAs, it may be helpful to speak with an estate planning attorney to figure out what type of power of attorney is best for your needs.
Normally, powers of attorney expire once you become mentally incapacitated. Durable powers of attorney are different because they are drafted in a way that allows your agent to retain their authority regardless of your mental state.
For example, this means that if you have a Durable POA and begin to experience dementia, your POA remains in effect even though your mental state has considerably changed.
Let’s say you have a non-durable POA that allows your son or daughter to manage your bank accounts to make it easier for them to conduct transactions on your behalf. If you suddenly got in an accident that left you in a state of limited mental capacity, that power of attorney would no longer be valid because you are now incapacitated.
But, if you had signed a Durable POA, your son or daughter’s authority over your bank accounts would stay the same because Durable POAs remain valid regardless of your mental state.
There are two kinds of Durable POAs – one type is in effect both before and after you are incapacitated, and the other type (known as a Springing POA) goes into effect upon incapacitation.
Below you can see the difference in the duration of a regular power of attorney, Durable POA, and Springing POA if an injury that leads to incapacitation occurs:
What constitutes incapacitation can differ by state and isn’t always clear. As such, it’s important to clearly describe the level of incapacitation needed for your power of attorney to take effect when drafting a Springing POA.
For example, you could include in your POA that your primary care doctor must deem you incapacitated due to a medical condition in writing, or that two different doctors must agree in writing that you are no longer able to make decisions for yourself.
An estate planning attorney can help you navigate the ins and outs of Springing and Durable POAs to make sure your documents accurately reflect your wishes.
A Durable POA allows your agreement to remain in effect under circumstances when an ordinary power of attorney would no longer be valid. Creating a Durable POA will therefore enable you to better prepare for a decline in your health, potential accidents, or declining mental capacity that would leave you unable to understand the consequences of your decision making.
Like a regular power of attorney, Durable POAs can have multiple uses. If you’re going under anesthesia for a surgical procedure, your Healthcare POA must be durable to ensure your agent can make decisions for you while you’re unconscious. In these sorts of temporary situations, you can include a condition that the POA will expire when you regain the ability to make your own decisions.
Since incapacitated people can’t enter new power of attorney agreements, if you lose your mental capacity without a Durable POA in place, your family will have to go to court to regain control over your affairs. The court may appoint an outsider as your guardian or conservator in such a scenario, which would leave your loved ones with very little control.
Setting up a Durable POA allows you to avoid that type of situation and control who manages your affairs.
Like non-durable powers of attorney, Durable POAs expire upon your death.
Keep in mind that your agent can resign at any time. If you don’t list a successor agent in your power of attorney, then the agreement will expire upon the agent’s resignation since there is no one else authorized to carry it out.
Since you can’t create a new power of attorney once you’re incapacitated, if your agent resigns while you’re incapacitated and you don’t have a successor agent, the court could place you in a guardianship or conservatorship and designate an outsider to manage your affairs. Talk with your estate planning attorney about successor agents and other safeguards to ensure this doesn’t happen.
You can revoke any kind of power of attorney at any time as long as you are mentally competent.
The process of revoking is simple – make sure it’s in writing, and be sure to notify the institutions your agent frequently dealt with.
That being said, you cannot revoke a POA once you are incompetent. So if you do become incapacitated, you won’t be able to revoke your Durable POA without going to court. Therefore, it is crucial to choose an agent you trust to act in your best interest, especially for a durable power of attorney.
A Durable POA can be an essential tool to ensure your affairs are taken care of when you don’t have the capacity to do so. An estate planning attorney can help you set up a power of attorney that works best for your circumstances.