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What is Durable Power of Attorney?

A durable power of attorney is a legal document that gives someone you choose the authority or power to act or make decisions on your  behalf in the case you ever become mentally incapacitated, A durable power of attorney is an agent, appointed by an individual to make important health, business and financial decisions.

Often people would rather not think about the effects of aging, or what happens in the event of illness or injury. Making the decision to appoint a power of attorney can make difficult times easier on family members. It helps to take the burden away when trying to decide what would be best for their loved ones.

What is the difference between a durable power of attorney and other power of attorneys?

A durable power of attorney has the same rights and duties as a regular power of attorney. The main difference is that they remain in control in the event the appointer is not mentally capable to make sound decisions. Without an appointed DPOA, the courts would need to designate a guardian to handle the important life matters. If a DPOA is already designated, the court will recognize them as being a trusted decision maker.

When should an agent be chosen?

It may be advisable for you to discuss appointing a DPOA long before   you have any reason to worry about handling your own medical, financial or business matters. There are certain situations that a person may become unable to mindfully appoint their own agent, such as Alzheimer’s disease or car accident, where a pre-appointed DPOA would be extremely beneficial.

How is a durable power of attorney written?

A durable power of attorney may be written it two ways.

The first way is a lot like a trust, it means the agent is appointed to take over another individual’s life matters immediately.  The second way to designate a DPOA  is to state that the responsibility of the agent goes in effect only after the appointer is deemed unable to make sound decisions on their own behalf.

Agent Selection

Choosing an agent can be a very hard decision.  There are a lot of things to consider.

·        Is this person responsible?

·        Have they been a trusted, reliable friend, or family member?

·        Are they financial stable?

Most often people will choose their husband, wife or a child because they are able to trust their character, or know that their choices would be in accord with your own values. Your choice should be someone you find comfort in knowing they will handle all your important life decisions in the way you would want. A close family member, such as your child or spouse is often a good choice for your DPOA, but talk to the person to make sure she's ready to handle the responsibility first.

Agent Accountability

Each state has different laws in place when it comes to any type of power of attorney agreement. This type of document is considered a contract and is recognized as such once it has been signed by both parties.  To validate the signatures, it may be advisable to have the document notarized, even in states that do not require notarization to recognize authentication.

Revocation of Duties

Each state may require different methods when it comes to relieving an agent of their power of attorney duties. In many cases it can be done by writing a revocation letter and giving the agent a copy. It may also be necessary to let anyone else who may have been given a copy of the original POA agreement know about the change. This includes banks, doctors, lawyers or anyone else that may have done business with the former power of attorney.

The thought of assigning a durable power of attorney can be a scary one. Often people feel as if they are signing away rights to live life as they choose. But as read above this isn’t the case! The questions remain, “What happens if a loved one is no longer of sound mind to make important life choices?” Who will decide what’s best for their health and financial well-being? Who wants their family to have to make these tough choices? This is why many people have decided to appoint a durable power of attorney while they are still of sound mind. Doing so while you can be a great way to designate someone you trust to handle your life decisions just as you would.  

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