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Establishing Durable Power of Attorney

UPDATED: January 3, 2020

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You may have heard the phrase, but what exactly does “durable power of attorney” mean? To understand what durable power of attorney is, you may first want to consider the definition of power of attorney, and the various forms of power of attorney that are available.

What is Power of Attorney?

Power of attorney essentially refers to a legal maneuver in which you appoint, through legal documentation, another person or an organization to represent you in your affairs if you cannot represent yourself. The person to whom you assign power of attorney is known as your “agent,” or “attorney-in-fact.”

What are the Different Types of Power of Attorney?

There are several types of power of attorney:

  • General Power of Attorney: Your attorney-in-fact serves as your agent in a variety of circumstances.
  • Specific Power of Attorney: Your agent acts for you only in very specific instances that are specified in your grant of authority.
  • Health Care Power of Attorney or Medical Power of Attorney: Your attorney-in-fact makes health decisions for you in the event that you are unable to make those decisions for yourself. He or she does not make other decisions or deal with other aspects of your affairs.

What is Durable Power of Attorney?

Each of the above types of power of attorney – general, special, and health care – can all be made “durable” by adding specific legal terminology. These terms mean your power of attorney will remain in effect in the event that you become (or are) mentally incompetent. If you do not specify that a power of attorney is durable, it can become invalidated once you become incapable of making decisions on your own, which is the very time you may need it most.

Why Should I have Power of Attorney?

Opting for power of attorney is a very weighty decision, as it gives your future agent tremendous power over your affairs and your estate in the event that you are ill, become ill, or expect that you will lose your ability to make decisions on your own behalf.

Your attorney-in-fact will be able to sell what you own, take money out of your bank accounts, make life and death decisions for you, and otherwise have great control over your life, so make sure that you choose someone you can trust to honestly and effectively act on your behalf. Clearly define which form of power of attorney you want. For example, you may want your agent to act on your behalf only regarding medical affairs, if you are unable to do so.

How Do I Establish Durable Power of Attorney?

To establish durable power of attorney, you need to get the documentation from your attorney or from a site offering online legal forms. These forms vary from state to state, so make sure you are completing the appropriate form. Once you have completed the forms, signed, and filed the necessary documents, the durable power of attorney takes effect, and will remain in effect until you sign a document to rescind it.

How an Estate Planning Attorney Can Help

When it comes to such an important matter as establishing durable power of attorney, you don’t want to run the risk of making a mistake by handling the filing on your own. To make sure you properly complete all requirements to establish durable power of attorney, you might want to consider getting the help and advice of a qualified estate planning attorney. An estate planning attorney can draft a durable power of attorney document that covers all of the essentials and that will stand up in court if challenged.

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