Durable Power of Attorney FAQs
WHAT IS A DURABLE POWER OF ATTORNEY (DPA)?
WHO CAN EXECUTE A DURABLE POWER OF ATTORNEY?
WHO CAN SERVE AS ATTORNEY-IN-FACT?
WHAT POWERS DOES MY ATTORNEY-IN-FACT HAVE?
WHAT IS A SPRINGING POWER OF ATTORNEY?
WHAT ARE THE ADVANTAGES OF A DURABLE POWER OF ATTORNEY?
WHAT HAPPENS IF I BECOME INCOMPETENT AND DON'T HAVE A DURABLE POWER OF ATTORNEY?
WHAT IS A DURABLE POWER OF ATTORNEY FOR HEALTH CARE?
WHAT IF I AM COMPETENT TO MAKE MY OWN HEALTH CARE DECISIONS?
WHAT POWERS CAN I GIVE MY ATTORNEY-IN-FACT?
WHAT IS A DURABLE POWER OF ATTORNEY (DPA)?
A Power of Attorney is a legal instrument that is used to delegate legal authority to another. The person who signs (executes) a Power of Attorney is called the Principal. The power of Attorney gives legal authority to another person (called an Agent or Attorney-in-Fact) to make property, financial and other legal decisions for the Principal.
WHO CAN EXECUTE A DURABLE POWER OF ATTORNEY?
A A person must be competent in order to execute a valid Durable Power of Attorney. If there is a question regarding the principal’s competency, it is a good idea to get a doctor’s letter or declaration regarding the competency of the principal at the time the document is executed.
WHO CAN SERVE AS ATTORNEY-IN-FACT?
Any trusted person, such as your spouse, adult children, relatives, or friends, can serve as attorney-in-fact. It does not have to be an attorney.
WHAT POWERS DOES MY ATTORNEY-IN-FACT HAVE?
A Principal can give an Agent broad legal authority, or very limited authority. The Power of Attorney is frequently used to help in the event of a Principal's illness, incompetence, disability or in legal transactions where the principal cannot be present to sign necessary legal documents.
A Power of Attorney can be used to grant any, or all, of the following legal powers to an Agent:
- Buy or sell your real estate
- Manage your property
- Conduct your banking transactions
- Invest, or not invest, your money
- Make legal claims and conduct litigation
- Attend to tax and retirement matters
- Make gifts on your behalf
WHAT IS A SPRINGING POWER OF ATTORNEY?
Ordinarily, a Durable Power of Attorney becomes effective as of the day it is signed. This means that even if you are competent to make your own decisions, your attorney-in-fact will also have the legal authority to act on your behalf and engage in financial transactions.
A "Springing Power of Attorney" on the other hand, becomes effective at a later date, usually when the principal becomes mentally incompetent, it "springs" into effect at the point you lose capacity, as certified by a physician.
WHAT ARE THE ADVANTAGES OF A DURABLE POWER OF ATTORNEY?
A Durable Power of Attorney is a relatively easy and inexpensive mechanism for allowing another person to handle your legal and financial affairs. Unlike a joint tenancy bank account, which is often used by people as a management device in the event of incapacity, a Durable Power of Attorney does not give your attorney-in-fact legal access for his own use. Your attorney-in-fact must use your assets for your benefit.
WHAT HAPPENS IF I BECOME INCOMPETENT AND DON'T HAVE A DURABLE POWER OF ATTORNEY?
If you become mentally incompetent and do not have a Durable Power of Attorney in place, someone, whether it be your spouse, children, relative or friend will have to petition the court for a Conservatorship. This process is quite expensive, time consuming and invasive. Cost and time aside, the court must investigate the potential conservator to make sure he or she is capable of acting as conservator, and has the principal's best interests at heart.
WHAT IS A DURABLE POWER OF ATTORNEY FOR HEALTH CARE?
A Durable Power of Attorney for Health Care is a document by which you select another person (your agent or attorney-in-fact) to make health care decisions for you. It remains in effect indefinitely. For anyone who executed the document prior to January 1, 1992, the Durable Power of Attorney for Health Care must be renewed after seven years.
WHAT IF I AM COMPETENT TO MAKE MY OWN HEALTH CARE DECISIONS?
You have the right to make your own health care decisions even if you have an executed Durable Power of Attorney for Health Care. The Durable Power of Attorney for Health Care is effective only if you are not competent to make you own health care decisions.
WHAT POWERS CAN I GIVE MY ATTORNEY-IN-FACT?
The powers which you can give to your agent pursuant to a Durable Power of Attorney for Health Care include:
- The right to refuse or consent to treatment;
- The right to access medical records;
- The right to withdraw and cease life sustaining treatment;
- The right to make burial decisions; and
- The right to make anatomical gifts.