As a person ages, their ability to make important decisions can become less clear. Additionally, they have a far greater chance of experiencing some kind of health situation in which they cannot voice their own wishes. In these scenarios, there needs to be someone in place who can make decisions for these people and act in their best interests. The easiest way to ensure this is a durable power of attorney. By granting certain legal powers to a trusted agent, you can ensure that even if you are unable to make decisions for yourself, someone will be there to act in your place.
What Is a Power of Attorney?
A power of attorney (POA) is a legal document that gives one person (the agent or attorney-in-fact) the power to act for another person (the principal).1 From there, the agent is given legal authority to make decisions on the behalf of the principal, including legal, financial, or medical matters. There are many different reasons for using a POA: it is often used in the event of a sudden illness, or when the principal cannot be present to sign important legal documents for financial transactions.2
There are many different types of power of attorney, with the most common being special, general, and medical POA.3 While a general POA grants wide legal authority to handle any potential legal scenario, a special power POA is written to be narrow, covering a very specific set of issues or drafted to refer to a specific condition that the principal has. As the name suggests, a medical POA covers a narrow area of focus, such as deciding which medical treatments the principal should undergo.
What is a Durable Power of Attorney?
A durable power of attorney (or DPOA) is a specialized version of a general power of attorney. With a general POA, the authority it grants ends the moment that the principal is deemed incapable of making decisions for themselves. The DPOA is designed so that the document stays in effect even if the principal is mentally capacitated and unable to handle matters on their own.4 If the POA is written as an indication that it is “durable,” this means it will last for the remainder of the principal’s lifetime unless the principal revokes it.5
As with a standard POA, a DPOA can either provide general legal authority or be tailored towards specific needs. For instance, a DPOA might be made to grant an agent the authority to make health-related decisions or to handle finances. Regardless of which specific tasks they are granted the authority to perform, an agent is expected to carry out the principal’s wishes to the best of their ability.6
How Do You Set Up a Durable Power of Attorney?
Setting up a DPOA is fairly easy and doesn’t need to be filed with a court or government office, with the possible exception of a POA related to real estate. Certain states or financial institutions have POA forms that they prefer to use, which can serve as a resource when establishing your POA. Since some financial institutions require that their format be used, be sure to check with any banks or brokers you are using before crafting the documents.7
When you have the proper documents and have determined who will be named as the agent responsible for making decisions, you fill out all the forms, including any specific requirements that you want from your agent in terms of decision making. Once the POA is written, witnessed, and notarized, you should keep one copy safely stored away and while sending additional copies to all relevant parties, including the agent.
Be aware that your POA must be in written form. A verbal agreement is not considered a legal POA, nor is a casually written note or letter.8 Also, remember that you aren’t “done” with the DPOA after you’ve signed off on it. You should revisit your power of attorney documents regularly, at least once a year, to ensure that they still reflect your needs and wishes.9
Last but not least, be sure that the person you choose to serve as your agent is someone that you can trust. With a durable power of attorney, you are giving someone the power to make decisions for you even if you can’t voice them yourself, so you need to choose somebody you believe will act in your best interest. Depending on how complicated or time-consuming the job is, you might be able to choose a family member to serve the role, or you might need to hire a legal professional, who will need to be paid for their services. Either way, it is a matter of trust.
If you have further questions or would like assistance setting up your POA or DPOA, schedule a free appointment here.
Endnotes
1. Kagan, J. (2021, May 19). Power of Attorney: Allowing One Person to Act on Behalf of Another. Investopedia. https://www.investopedia.com/terms/p/powerofattorney.asp.
2. Kagan, J.
3. Gumaer, D. (2018, September 11). The Difference Between Durable and General Power of Attorney. Griswold Home Care. https://www.griswoldhomecare.com/blog/2018/september/the-difference-between-durable-and-general-power/.
4. Irving, S. (2020, August 11). The Durable Power of Attorney: Health Care and Finances. NOLO. https://www.nolo.com/legal-encyclopedia/durable-power-of-attorney-health-finances-29579.html.
5. Kagan, J.
6. Kagan, J.
7. A Guide to Financial Power of Attorney. Caring.com. (n.d.). https://www.caring.com/caregivers/power-of-attorney/.
8. A Guide to Financial Power of Attorney.
9. Kaminsky, M. (2021, May 13). What’s the Difference Between a Durable and a Regular Power of Attorney? LegalZoom. https://www.legalzoom.com/articles/whats-the-difference-between-a-durable-and-a-regular-power-of-attorney.
About the author
Founder/Attorney, CCSK Law
I create customized solutions for families to address their planning needs.
I provide plans clients understand. Also, they make sure they know when to use them, and do so affordably. I love the opportunity to break through the legal jargon to clarify issues. We find success when we work through a person’s situation and put the law to work for them.
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