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Durable Power of Attorney

A durable power of attorney can be an effective tool for those that rely on someone to be able to act on their behalf. There are basic forms for durable power of attorney or customized forms can be created. Uncertainties on what exactly are a durable power of attorney responsibilities or how long a durable power of attorney is effective often lead to questions like the ones answered below.

What is durable power of attorney?

A power of attorney is useless if the grantor (person who gave the power of attorney) becomes incapacitated. The grantor is unable to give the power due to physical or mental illness. However if the grantor, also called principal, stipulates that the power of attorney will continue to be operational even if the grantor becomes incapacitated then it will continue. In that case this type of power of attorney is called power of attorney with durable provisions (durable power of attorney) With a durable power of attorney, the attorney-in-fact (person given the power) will be able to act and make decisions on behalf of the grantor until the grantor’s death.

My wife is the durable power of attorney for her father’s estate. His care for Alzheimer is quickly eating up all his money and assets. As Durable POA of the trust can my wife invest in real estate such as flipping houses and rentals to try to make my father in laws money potentially last longer?

Durable powers of attorneys are typically written up in the broadest sense. In these circumstances she would have the right to act in the highest good faith for the grantor’s benefit. The stipulation would be that there is no conflict of interest and it is in the grantor’s benefit that she carries out the endeavor.

Is a durable power of attorney in effect after the death of the grantor? I am the Heir and was or is the requested guardian of the estate?

The durable power of attorney becomes ineffective after the death of the grantor. It will automatically terminate. Upon the death of the grantor, the person named as the executor in the grantor’s will would now be the person with the authority over the grantor’s estate.

Does the durable power of attorney also serve as a health care power of attorney? Can it have precedence over a health-care power of attorney?

A general durable power of attorney that contains the power to make health care decisions would trump a health care power of attorney only if the general durable power of attorney was implemented after the health care power of attorney.

Typically a general durable power of attorney forms do not cover the right to make health care decisions. This would have to be added in as a provision. It would need to be a customized general durable power of attorney form. The rule of thumb is that the most recently signed document would be the effective power to make the health care decisions.

Would the court override a durable power of attorney in favor of a guardianship?

In most cases the court would not override a durable power of attorney in favor of a guardianship unless the person asking to be appointed guardian can prove that the durable POA is breaking their fiduciary duty to the grantor. Durable power of attorney is effective even after the mental incapacity of the grantor. The grantor is basically saying that when I can no longer make any decisions on my own I give the POA this power to act on my behalf. If the grantor is now making a decision requiring a guardianship because they can no longer act on their own, then the court in most cases will appoint the person that was chosen by the grantor themself as the durable power of attorney as the guardian.

Gathering correct information and clearly understanding durable power of attorney responsibilities can help when dealing with durable power of attorney circumstances. Experts can help answer what a durable power of attorney is or how long a durable power of attorney is effective. Get the answers fast and affordably by asking an Expert.
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