Important Facts About a Durable Power of Attorney
A durable power of attorney is a powerful legal tool gives someone you trust the legal authority to act on your behalf, and it continues in effect if you become ill and unable to make decisions or become mentally incompetent. Thinking about possibly becoming incapacitated in the future is uncomfortable, no matter your age or current life situation. However, life can be unpredictable, so it’s important to have an incapacity plan in place since it will help you and your family if it’s ever needed.
If you don’t have a durable power of attorney (DPOA) and you become incapacitated, then your family will have to go through a court proceeding to establish a conservatorship or guardianship and appoint someone to take care of your medical and financial decisions for you. This process can take a long time, costs legal fees, and causes a bit of frustration for your family, so it’s not the best route to take. The court might even select a conservator or guardian who you don’t trust.
The most prudent path to follow is to consult with an experienced, professional estate planning lawyer to fully understand a durable power of attorney and what powers you can give to a trusted relative, friend, or professional. At the Heritage Law Center, we can further explain the benefits of a DPOA and discuss how to choose the right person to be that trusted individual named in the document.
When you create a durable power of attorney, you name someone to be your attorney-in-fact, also called an “agent,” who can make decisions for you that you would normally make yourself in the event you become incapacitated. As the principal (person who created the DPOA), you decide specifically what you want them to be able to manage. Options include health care, medical, business, financial, and legal decisions. This appointed agent is legally mandated to always act in your best interest and has specific rights and responsibilities.
The agent of your durable power of attorney will be given some control over your affairs. Therefore, the guidance and experience of a skilled incapacity planning lawyer is mandatory in assisting you in making this critical decision.
What’s the Difference Between a Power of Attorney And a Durable Power of Attorney?
An ordinary (also known as “general”) power of attorney is a valuable legal tool that you (as the principal) can use to appoint another person to hold the authority, make decisions, and institute critical actions on your behalf. Frequently, a general power of attorney specifies an end date or an event, after which the general power of attorney will become ineffective. One common use of an ordinary power of attorney is to name an agent so that person can sign closing real estate documents or other legal documents on the principal’s behalf.
The main difference between an ordinary power of attorney and a durable power of attorney is that a DPOA has specific language that extends your agent’s powers to include situations where you become incapacitated and can’t make decisions for yourself. A regular power of attorney actually ends when you become incapacitated. With any kind of power of attorney, as the principal you must sign the document while you are in good mental and physical health.
Your durable power of attorney typically goes into effect as soon as you sign it, so your agent can begin acting on your behalf whenever you choose. If you want your attorney-in-fact to use the document only if you become incapacitated and unable to take care of your finances, be sure to clearly convey those wishes to the person you name. Also, a DPOA usually remains in force until you (as the principal) revoke these powers, or you die.
You can revoke the document by doing so in writing. It’s also necessary to gather and destroy any copies of the original document. You must also send written notifications to any individuals or businesses who have a copy of the DPOA and tell them that you have revoked that power of attorney.
Married couples can also find it beneficial to have a durable power of attorney for each other. When one spouse becomes incapacitated, it’s possible for legal complications to occur. Having the DPOA in place, can make life much easier for a spouse who’s dealing with health care complications their partner is going through.
Of course, everyone has their own unique set of circumstances, which is why it’s important to choose a trusted agent and decide what powers you want to give them. A thorough and detailed discussion with a qualified estate planning lawyer is critical.
Primary Types of Durable Powers of Attorney
Powers of attorney and durable powers of attorney can be drafted for many purposes, such as:
- Handling your finances, such as paying bills, signing checks, etc.
- Manage buying, selling, and maintaining any real estate you hold
- Overseeing your business transactions, such as borrowing money, etc.
- Making critical medical decisions
- Filing personal and business tax returns, donating to charities, and more
- Applying for MassHealth
Remember, the main difference when drafting a durable power of attorney is that it stays in force if you become incapacitated, and your affairs (as you specifically describe them in the DPOA) will be handled when you’re unable to manage them yourself.
There are two primary types of durable powers of attorney, and these are:
- A financial power of attorney – Also known as a durable power of attorney for finances. This DPOA gives the person assigned the power to manage and oversee your financial affairs should you become incapacitated.
- A medical power of attorney – This is also known as a health care proxy. When professionally drafted, it provides authority to your appointed person to make medical decisions on your behalf when you’re unable to do so.
When discussing this with a knowledgeable estate planning lawyer, you’ll find out that there are many different types of powers of attorney, some of which may be expressly limited in scope; the more extensive your estate, the more detailed you may want your power of attorney to be.
Discussing your unique circumstances and taking into account your wishes will help you and our knowledgeable estate planning lawyer determine what type of power of attorney best suits your unique needs.
Why Is It Best to Use a Lawyer To Draft a Durable Power of Attorney?
Most people considering establishing an estate plan are concerned about what will happen to their assets and wealth upon their death. It’s also essential to think about what happens if you become incapacitated due to a sudden illness or accident. Our experienced estate planning lawyer has been focused on doing estate plans since 2010, so he knows how to do a comprehensive estate plan to meet all of your needs and goals.
A durable power of attorney can cover giving an agent power over many different things. The agent could help with tax matters, manage retirement benefits, apply for governmental benefits, create or update estate planning for you, or manage your real estate, and more, so the document needs to contain exactly what you want your agent to be able to do for you. The document can also limit your agent’s authority. You need to use a skilled attorney to create the document to precisely give your agent the powers you want them to have.
If your assets must be managed if you become incapacitated it can be a challenging situation that causes disruption in your family and possibly even having them go to court to get a conservator and a guardian appointed. Our lawyer is knowledgeable in these matters, and he knows that using a durable power of attorney (or another type that fits your situation) can possibly limit familial problems by having the problem solved before the reality of it occurs. In other words, it serves to think about future possibilities now because they could be critical to your future and your family’s future.
Setting up a durable power of attorney requires little time or money, and it can be done by obtaining the guidance of our compassionate and skilled estate planning lawyer. Start by setting up a consultation with our lawyer, and he’ll listen to your wishes and design a power of attorney to your specifications.
But make no mistake, this is a critical document, and that needs to be done correctly. If it’s not done accurately, the agent won’t be able to do what you want them to do.
Contact Us Today About a Power of Attorney
The first thing to do is to consider what aspects of your life you would want to have managed if you become incapacitated. Then have a conversation with our experienced Woburn estate planning lawyer at the Heritage Law Center
By having the proper power of attorney in place, you can gain enormous peace of mind knowing that all your assets, affairs, and business matters will be managed according to your wishes. Call us today at (619) 765-9307 and get the legal guidance you need for peace of mind and your family’s future.
