• David Manes

What is a durable power of attorney and why do I need one?

Imagine a responsible estate planner who has written a will, a living will and has transferred much of his property in anticipation of death, incapacity or coma. The will covers his remaining property, the living will covers his medical decisions in case of incapacity and his previous property transfers have resulted in tax savings.

One may ask, what else does he need? He has covered all the bases right? The answer is no. He is at least one document away from having a complete estate plan and that document is a durable power of attorney. To understand durable powers of attorney we must first look at a general power of attorney.

What is a general power of attorney?

You may be familiar with a general power of attorney document. A general power of attorney is an authorization written by one person granting another person the legal authority to make decisions on his behalf. The person granting the power of attorney is called the principal and the person given the power to act is known as the agent.

When are powers of attorney used?

Often they are used when an elderly person has trouble making financial or medical decisions for themselves. They will grant a child or loved one the legal power to make those decisions for them through a power of attorney. The problem with a general power of attorney is that under U.S. law the power of attorney is extinguished when the person who granted it dies.

What is a durable power of attorney?

The durable power of attorney is the same as a regular power of attorney except it will survive even when the grantor dies.

What are the advantages of a durable power of attorney?

A durable power of attorney allows the agent to keep making decisions for the principal even after the principal has died or has become incapacitated. Such a power is useful when circumstances arise that the principal did not cover in his or her will or living will. For example, a person may have a living will that conveys her wishes in case she is connected to a feeding tube, but it may not cover what decisions to make when an experimental new surgery arises that offers new risks and rewards. In that case a durable power of attorney would allow a loved one to make the decision about the new surgery. The same rings true for financial decisions that may arise after the principal’s death or incapacity. Thus, the durable power of attorney creates greater flexibility and allows for planning in case of unforeseen circumstances.

Conclusion

Even if you have created a will, a living will and have done some estate planning, a durable power of attorney is an essential piece of the plan that you should include in the mix. It allows for you to place the power to make medical and financial decisions after your death or incapacity into the hands of someone that you love and trust. It prepares your estate for unforeseen circumstances and helps to ensure your wishes and desires are respected. There are many ways to craft a durable power of attorney and the laws of each jurisdiction will vary, so be sure to contact local counsel when creating your own estate plan and durable power of attorney.

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