Durable Power of Attorney
A power of attorney provides you with a substitute decision maker to act during your lifetime. This power to act in your place and stead during your disability is not necessarily a giving-up of your power, but is, in fact, an important element in retaining control and autonomy. You are delegating to the person you trust your power, not leaving it for a Probate Court to decide without your input.
Under the law, you, as a competent individual, have the power by a written document, to authorize another to act on your behalf, in your place or stead, as your agent. Under general rules, this power is automatically revoked when you die or become incapacitated. Oddly enough, this is the very instant that you need the power to be effective. Therefore, the “durable” power of attorney was created.
The durable power of attorney takes effect during the incompetence or disability of an individual. This power is durable because the power does not cease upon your incapacity but instead continues through such a period.
This provides an attractive alternative to judicial guardianship and conservatorship in the event of incapacity. Additionally, it does not take away any of your independence and control over your affairs while you are able to direct and control your legal and financial matters.
The durable power of attorney is a flexible document. It can provide your attorney in fact with all the powers you would have or you can limit the power. You can provide for your agent (attorney in fact) to have power to make gifts, either outright or in trust. They can be given the power to change life insurance, pension or IRA beneficiary designations.
You retain the power to control the actions of the agent by specifying not only the limits of their powers but of the individual as well. You retain the authority to change the individual named as the identity of your attorney-in-fact is under your control.
Execution of a Durable Power of Attorney is an important component of the Estate Planning process.