Durable Power of Attorney: A Basic Guide
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If you become catastrophically injured or terminally ill and unable to consciously make decisions, who would be able to make them for you?
While many people assume that a spouse or child automatically has authority, this assertion is not the case without having to jump through legal hoops. By the time they receive power to make decisions on your behalf, it could be far too late in some situations.
Instead of leaving yourself exposed, draft and execute a durable power of attorney to protect your rights and provide your loved ones with peace of mind. Continue reading to learn everything you need to know about durable powers of attorney.
What is a Durable Power of Attorney?
Durable powers of attorney (DPOA) allows someone to act as an attorney-in-fact agent on behalf of the principal. Powers extend to authority over financial, medical, and legal affairs decisions if the principal cannot do so. It is a document intended to make the decision-making process as easy and quickly as possible for the agent.
People generally assign durable powers of attorney to:
- Spouses
- Partners
- Adult children
- Parents
- Grandparents
- Siblings
- Attorneys
The person you choose to act as a durable power of attorney should be someone you trust implicitly. This individual may be called upon to render decisions on your behalf and in your best interest. It is also helpful to select a person with whom you routinely interact so that they have a better understanding of how you make personal decisions.
A durable power of attorney ends when specific conditions are met. You have the right to revoke these powers at any time and on your own free will. However, they will automatically end upon your death regardless of preceding events.
Difference Between Durable Power of Attorney and General Power of Attorney
The primary difference between a durable power of attorney and general power of attorney is that durable POAs remain intact until the principal either revokes authority or dies while the latter ends upon principal incapacitation. They also share different purposes as well.
Since this article focuses on durable powers of attorney, let’s take a brief but closer look at general powers of attorney.
General Power of Attorney
A general power of attorney offers support to the principal while still alive and able to consciously make independent decisions. There are usually specific healthcare issues that necessitate using a general power of attorney, such as a mental illness or catastrophic injury.
Reasons to use a general power of attorney include:
- Handle financial matters
- Operate an owned business
- Manage and discuss insurance policies
- Making doctor’s appointments
- Discuss medical records
- Issue critical decisions in their place
- Retain legal rights to specific designations
There are many tangible reasons to use a general power of attorney when a person is still alive and cognitive. However, a general POA does not address issues once the principal becomes incapacitated. Let’s look at this situation more closely and other reasons to use a durable power of attorney.
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Reason to Use a Durable Power of Attorney
Reasons to use a durable power of attorney primarily center around a specific triggering event. Sometimes these events lead to family lawyers calling the document a “springing POA” when certain conditions are met—for example, your durable power of attorney “springs” into effect upon your incapacitation.
There are two types of springing POAs that you can use, including a durable power of attorney for health care and a durable power of attorney for finance.
Durable Power of Attorney for Health Care
Durable powers of attorney (DPOA), also known as a medical power of attorney, for health care allows a proxy to make medical decisions on your behalf if you become injured or terminally ill, rendering you incapacitated. It is also a limited power of attorney because the proxy cannot make legal decisions on unrelated matters, such as financial affairs.
Durable Power of Attorney for Finance
Durable powers of attorney (DPOA) for finance, also known as a financial power of attorney, allow your proxy to make financial decisions for you if you become incapacitated or unconscious. They can authorize transactions, make withdrawals, open new accounts, and speak with the bank on your behalf. Your financial DPOA must be someone you know and trust well since they have direct access to your financial accounts.
There are other types of legal powers of attorney. However, the above-referenced documents are used most commonly. Always speak with estate planning lawyers about your options if you have questions.
Durable Power of Attorney Templates
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Important Clauses in a Durable Power of Attorney
Durable POAs must contain specific guidelines and provisions like any other contract. Missing essential clauses in a durable power of attorney can render them invalid or unenforceable. This situation will lead to additional legal issues with which your family must contend.
Important clauses in a durable power of attorney agreement include:
- Introduction of the parties
- Specific delegate powers
- Choice of law clause
- Acceptance
- Signature block with datelines
- Notarization block
The above-referenced list is a simple outline of the critical durable power of attorney clauses that you will want to incorporate into your documents. However, other provisions are necessary, especially when creating a springing power of attorney, such as a medical POA or financial POA. You can learn more about your legal rights and options by getting legal help with your durable power of attorney.
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Get Help With Your Durable Power of Attorney
A durable power of attorney is one component of a solid estate plan. This document will grant your loved ones the authority to act on your behalf, but you could also benefit by engaging the estate planning process to take tax advantages, ensure your final wishes are met, avoid probate, and leave a lasting legacy.
Other estate planning documents that you may want to consider with your durable power of attorney includes:
- Pour over or living wills
- Advance health directives
- Revocable living trust
Probate lawyers and estate planning lawyers in your state can help you draft and sign these documents while ensuring that you meet your end-of-life objectives. It is challenging to determine which type of estate plan you need without speaking to a legal professional.
Efficient Legal Help for Spouses
Attorneys can also assist other family members. If you have a spouse, they will most likely need one, too, if not already in place. You and your spouse can work with the same individual to ensure a cohesive strategy is in place.
Effective Legal Analysis
Your durable power of attorney and overarching estate plans should reflect your financial, medical, and legal situation. Estate planning lawyers have professional training to spot indirect issues that could affect your plans. Avoid legal mistakes and redundancies by hiring a legal team to draft your documents early on.
Ongoing Support to Update Documents
It is not unusual for someone’s situation to change over time. Your attorney can offer you ongoing maintenance services on your durable power of attorney and other estate planning documents. It is usually comforting and encouraging to know that someone can help you as necessary.
ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.
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I'm an attorney available to help individuals and small businesses in Georgia with initial business set-up, required filings, tax strategies, etc. I'm also available to draft, review, and negotiate contracts of many types, both personal and professional. I can draft and file real estate quit claims as well. My legal and business experience and expertise includes small business startups, information technology, technology innovation, real estate transactions, taxes, intellectual property, electrical engineering, the business of video game development, business requirements definition, technology consulting, technology companies, liability waivers and reduction strategies, and the electric utility industry. I work part-time for a local law firm and part-time in my solo practice. I'm also an adjunct professor teaching business law. In addition, I'm part owner, legal counsel to, and a board member of a virtual reality video game development company. I am a member of the Georgia Bar Association. Please reach out if you need attorney, documentation or consulting help in any of those areas!
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My career interests are to practice Transactional Corporate Law, including Business Start Up, as well as Real Estate Law, Estate Planning Law, and Intellectual Property Law. I am currently licensed in Arizona, Pennsylvania and Utah, after having moved to Phoenix from Philadelphia in September 2019. I currently serve as General Counsel for a bioengineering company. I handle everything from their Business Transactional Agreements, Private Placement Memorandums, and Corporate Structures to Intellectual Property Assignments, to Employment Law and Beach of Contract settlements. Responsibilities include writing and executing agreements, drafting court pleadings, court appearances, mergers and acquisitions, transactional documents, managing expert specialized legal counsel, legal research and anticipating unique legal issues that could impact the Company. Conducted an acquisition of an entire line of intellectual property from a competitor. In regards to other clients, I am primarily focused on transactional law for clients in a variety of industries including, but not limited to, real estate investment, property management, and e-commerce. Work is primarily centered around entity formation and corporate structure, corporate governance agreements, PPMs, opportunity zone tax incentives, and all kinds of business to business agreements. I have also recently gained experience with Estate Planning law, drafting numerous Estate Planning documents for people such as Wills, Powers of Attorney, Healthcare Directives, and Trusts. I was selected to the Super Lawyers Southwest Rising Stars list for 2024 - 2026. Each year no more than 2.5% of the attorneys in Arizona and New Mexico are selected to the Rising Stars. I am looking to further gain legal experience in these fields of law as well as expand my legal experience assisting business start ups, and also trademark registration and licensing.
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Durable Power of Attorney
Colorado
How does a durable power of attorney work when the person dies?
If you have a durable power of attorney and the person dies, do you still have the authority or does it go to the spouse. I have a durable power of attorney for my aunt, she just died and I'm trying to take care of her funeral and things. Does her husband now have the right to make decisions or myself with the durable power of attorney?
Sarah D.
A Durable Power of attorney for finances (and healthcare) expires once your aunt dies. It is the executor of her will who now acts in that stead related to her finances. If the executor is the spouse, it will be his right to make the decisions. However, if all property was jointly owned between spouses, there is no need to probate the will under Colorado law.
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Durable Power of Attorney
North Carolina
Can someone who has POA & is a caretaker of a family member in an assisted living facility receive compensation for services rendered from the family member’s estate?
I have a cousin that has taken on sole responsibility for the care of my aunt (95 yrs old), who is now in an assisted living facility. He has spent countless hours handling the sell of her house, enrolling her into an assisted living facility, daily visits, taking her to doctor’s visits and handling any issues that may arise. Family members of my aunt would like to compensate my cousin for all his time spent in caring for my aunt. Can my cousin be paid a monthly compensation from my aunt’s estate? Can each family member sign a statement (and have it notarized) that they are in agreement for this money to be paid monthly to our cousin for his services? What steps would we need to take to make this happen? We just want to make sure it is all done legally.
Jazmin C.
I would say yes, especially if it is in the power of attorney that they can be compensated. If you want to reduce that down to a payment agreement, you can; it may not be necessary, but you can definitely do that. I would start with the durable power of attorney first!
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