Historically, a “power of attorney” was a document that allows one person to act on behalf of another person. This is known as the “principal-agent” relationship. The “principal” is the individual who is authorizing the other person to do things on their behalf. The “agent” is the person who is acting on behalf of the principal. The agent can be authorized to do almost anything on behalf of the principal. The “power of attorney” is the written document that represents this agreement. However, this agreement would dissolve if the principal became incapacitated, which is often when a power of attorney is needed the most. Enter the durable power of attorney.
A “durable power of attorney” represents the same principal-agent relationship as the original power of attorney. The durable power of attorney is “durable” in a sense that it remains effective when the authorizing person becomes incapacitated. This means that the individual authorized to act on behalf of the person will be able to continue to act as the agent making important decisions for the person who may have difficulty in handling their finances or medical decisions by themselves.
The durable power of attorney is becoming increasingly more important. Life expectancy continues to increase, and with that increase there is a higher possibility that people will suffer from both mental and physical deterioration. The durable power of attorney offers a way to plan for this possibility.
The alternative to a durable power of attorney requires judicial involvement and can lead to family hardships. In the absence of a durable power of attorney, a court may be required to appoint a conservator who is ordered to take care of the incapacitated affairs. A conservator is sometime appointed against the wishes of the incapacitated person and this can be emotionally difficult for everyone involved. Advanced planning is preferential and a durable power of attorney is a great way to avoid the alternative.
The durable power of attorney is a very convenient instrument that allows for people to plan for future problems that are likely to arise in every family. The durable power of attorney has been known as a “staple of the modern estate plan” and can be tailored in to fit any situation. Two of the most common ways that a durable power of attorney can be tailored are in the authorizations that the principal gives to the agent (general durable power of attorney vs. limited durable power of attorney), and when the durable power of attorney will go into effect (springing vs. immediate). A durable power of attorney is not a one size fits all estate planning document. It is important to seek legal counsel when deciding whether or not a durable power of attorney will be a good addition to your estate plan and what type of durable power of attorney will be the most beneficial to your situation.
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