The durable power of attorney is a means of naming a person who can represent another in all legal and financial matters, while they are alive and well, as well as when they are incapacitated. It is a legal document that needs careful consideration.
The power of attorney gives a representative or an agent the legal right to conduct financial affairs for another individual. A healthcare power of attorney gives an agent the ability to make medical decisions for another person. Both can be crafted by an estate planning attorney to give complete and wide-ranging decision making powers, or to be more targeted.
The Aitken (SC) Standard’s recent article, “The durable power of attorney,” explains that there are three different types of powers of attorney: nondurable, springing and durable.
A nondurable power becomes operative right away, when executed by the principal. It remains in effect until it’s revoked by the principal, or until the principal becomes mentally incapacitated or dies.
The durable power of attorney states that it is to be revoked neither by the subsequent incapacitation of the principal, nor by the passage of time. The principal can change or revoke a durable power of attorney at any time before the onset of mental or physical incapacity. Death of the principal terminates a durable power of attorney.
Springing powers of attorney are effective at a future date: the power “springs up” into existence when a specific event happens, like the illness or disability of the principal. An issue with springing powers that take effect when the principal is disabled, is that it may be hard to prove conclusively that the disability has actually happened.
The big advantage of the durable power of attorney is that it stays in effect after the principal has become impaired. The agent can act without court approval. It’s a good idea (and in some states the law) that you draft a different power of attorney document for financial matters and another, separate one for those powers pertaining to healthcare decisions.
While people always think they have more time to get these kinds of documents in order, in fact the earlier these documents are prepared, the better. By the time it becomes clear that someone is having trouble managing their affairs, the person may not be competent to grant powers of attorney. At that point, the family will need the intervention of a court to have a family member named as a guardian.
It is far easier, less costly and less stressful to have a Houston estate planning attorney create the appropriate documents for the couple or the individual at the same time that they are working on other estate documents. Waiting has consequences.
Reference: Aitken (SC) Standard (August 24, 2019) “The durable power of attorney”