Hickman Lowder

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

On Behalf of | Sep 28, 2023 | Estate Planning

People who want an estate plan often focus on what will happen when they die, rather than protecting them while they are alive.

People frequently create wills and trusts, but they may be less likely to put together advance medical directives and powers of attorney. When they do, they often use the simplest documents they can find, such as boilerplate forms from the internet. Those documents may be too simplistic to serve someone’s needs. Powers of attorney sourced online may not have the proper language to make them durable, meaning they won’t fully protect someone’s interests in the event of incapacity due to illness or injury. They also may lack important provisions that are essential when dealing with issues seniors often face.

What is a durable power of attorney?

A power of attorney is an agreement where a person (the principal) appoints someone (the agent) to act on their behalf. Usually, the principal wants their agent to act for them if they are not able to do so. However, a power of attorney document can lose its legal authority in one of two circumstances.

First, every power of attorney loses all legal authority when the principal dies. At that point, their testamentary documents determine who has authority over their resources; the agent named in the power of attorney will no longer be able to act on their behalf.

Second, documents can lose their legal authority if a court declares the principal legally incompetent, unless the power of attorney document is “durable.” A durable power of attorney specifically gives the agent authority to act even if the principal is declared legally incompetent.   If a person with Alzheimer’s disease or other debilitating medical conditions can no longer act on their own behalf, a court-appointed guardian must handle their affairs unless they have a durable power of attorney in place. Durable powers of attorney protect people more effectively because they retain their authority in the event of someone’s long-term or permanent incapacitation.

Why would you need a durable power of attorney?

Durable powers of attorney help you avoid guardianship, protect you when you may be vulnerable, and preserve your quality of life as you age. Durable powers of attorney give you the authority to choose who will act on your behalf without the need for court supervision. By taking control over who acts on your behalf, you reduce the likelihood that someone may abuse control of your affairs for personal gain.

Adding the correct documents to your estate plan can have a major impact on your life in the event of a medical emergency and/or physical and mental decline.