Durable Powers of Attorney

An important part of estate planning is the recognition of the possibility of incapacity and to plan for substitute decision-making.  For most people, the durable power of attorney is the most important estate planning instrument available — even more useful than a Will.  A power of attorney allows you to appoint your "agent" to act in your place when and if you ever become incapacitated.

In that case, the person you choose will be able to step in and take care of your affairs.  Without a durable power of attorney, no one can represent you unless a court appoints a guardian.  That court process takes time, costs money, and the judge may not choose the person you would prefer.  In addition, under a guardianship, your representative may have to seek court permission to take planning steps that she could implement immediately under a durable power of attorney.

How We Can Help

We will work with you to:

• determine the scope of your a power of attorney.
• identify the criteria for selecting the right person as agent under your power of attorney.
• select the type of power of attorney that's right for you.
• integrate your power of attorney with other important estate planning tools such as Wills and Trusts.
• integrate your power of attorney into an Elder Care Plan.

Types of Powers of Attorney

A power of attorney may be limited or general.  A limited power of attorney may give someone the right to sign a deed to property on a day when you are out of town.  Or it may allow someone to sign checks for you.  A general power is comprehensive and gives your agent all the powers and rights that you have yourself.

A power of attorney may also be either current or "springing."  Most powers of attorney take effect immediately upon their execution, even if the understanding is that they will not be used until and unless the principal becomes incapacitated.  However, the document can also be written so that it does not become effective until such incapacity occurs.  In such cases, it is very important that the standard for determining incapacity and triggering the power of attorney be clearly laid out in the document itself.

While you should seriously consider executing a durable power of attorney, if you do not have someone you trust to appoint it may be more appropriate to have the Court looking over the shoulder of the person who is handling your affairs through a guardianship . In that case, you may execute a limited durable power of attorney simply nominating the person you want to serve as your guardian.  The Court should respect your nomination "except for good cause or disqualification."

Note — attorneys report that their clients are experiencing increasing difficulty in getting banks or other financial institutions to recognize the authority of an agent under a durable power of attorney.  A certain amount of caution on the part of financial institutions is understandable — when someone steps forward claiming to represent the account holder, the financial institution wants to verify that the agent indeed has the authority to act for the principal.  Still, some institutions go overboard, for example requiring that the agent indemnify them against any loss.  Many banks or other financial institutions have their own standard power of attorney forms.  To avoid problems, you may want to execute such forms offered by the institutions with which you have accounts.  In addition, many attorneys counsel their clients to create living trusts in part to avoid this sort of problem with powers of attorney.

Advance Directives for Health Care (Living Wills)

Any complete estate plan should include an advance directive for health care, also sometimes called a health care power of attorney. 

A durable power of attorney for health care designates someone you choose to make health care decisions for you if you are unable to do so yourself.  A Living Will is a document in which you state your wishes regarding life sustaining medical treatment under circumstances where you are terminally ill with no hope for recovery and are mentally incapacitated so that you cannot make decisions for yourself.  A Living Will usually instructs your healthcare provider to withdraw life support if you are terminally ill or in a vegetative state.

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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Copyright © 2008 by Levandowski & Darpino, LLC. All rights reserved. You may reproduce materials available at this time for your own personal use and for non-commercial distribution. All copies must include this copyright statement.