Durable Power of Attorney: Get Yours Today!

Have you executed a Durable Power of Attorney?  If not, call me right away to help you do so immediately.  Some would consider a Durable Power of Attorney (DPOA) to be the most important component of a complete estate plan.  A DPOA is a written document in which the principal appoints another person to act as agent (sometimes referred to as “attorney-in-fact”) who is vested with the legal authority to perform a variety of financial and business actions on behalf of the principal during the period when the principal is incapacitated and unable to manage those affairs.   DPOAs are desirable because they enable the principal to have his or her affairs managed privately and efficiently during a period of incapacity by a trusted family member or other individual.  The document may be general or limited.  A limited POA gives the agent the authority to act only in certain capacities, which the document must describe in detail.  A general power of attorney grants broader powers to the agent, authorizing him or her to act in a wide variety of financial, administrative and other such matters.

In the absence of a DPOA, it would be necessary for someone to petition Probate Court to be appointed as Guardian of the incapacitated individual.  This is a costly and time consuming process and easily avoided by the creation of a DPOA. 

There are two types of DPOAs.  One is known as a “springing” power, because it takes effect only when the incapacity of the principal is determined.  The other, less common form in this context, is an “immediate” power, which takes effect as soon as the document is executed.   Whichever type of DPOA is used, the powers granted vest in the agent at the moment specified in the document, without any judicial proceedings.  Generally, the agent’s authority to act on behalf of the principal pursuant to a “springing” DPOA remains in effect only during the period of the incapacity of the principal.  If the principal regains capacity, the agent’s authority ceases.  Further, the principal, if competent, may amend or revoke the DPOA at any time.  DPOAs are valid only so long as the principal is alive, regardless of capacity or condition.  The document automatically terminates upon the death of the principal, at which time the named fiduciaries under the will or any trust will assume responsibility.

A DPOA is crucial to the orderly management of your affairs if incapacitated.  If you have not executed a Durable Power of Attorney, I invite you to contact me to implement this most important document.