Durable Powers of Attorney

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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Have you ever thought about what would happen if you became unable to make your own decisions, perhaps because of illness or medical condition, such as a stroke or coma?

Using a relatively simple legal document known as a Durable Power of Attorney you can legally empower another person – such as a trusted relative or friend — to act in your behalf, even if you became physically or mentally unable to manage your own affairs. You’ll also likely avoid the need to go to court to have someone appointed as your guardian or conservator.

Powers of Attorney come in a variety of flavors, so make sure you use the right type for your needs.  Powers of attorney generally enable the person or persons you designate to take as limited or as broad a  variety of actions as you specify – such as managing your bank accounts and writing checks for you, paying your rent and bills, managing you investment accounts, entering into contracts, dealing with insurance claims, operating your business, and buying and selling real estate.

A standard power of attorney may make sense if you’re going on vacation or away on business or military service and need someone locally to sign the deed on that house you’ve been trying to sell, or settle that insurance claim. However, unless the power of attorney is “durable” it becomes invalid when you may most need it. A Durable Power of Attorney remains valid regardless of mental or physical impairment until you revoke it or it expires after the period of years set out in your state’s law.

Although the document is called a Power of Attorney, the person you designate need not be an Attorney, and usually is not an Attorney. He or she becomes your agent with full power to act on your behalf. Now, giving someone else a Power of Attorney does not mean that you can no longer make your own decisions. But it does mean that the other person also will have the power to take action for you.

If you feel uncomfortable giving anyone else broad power to act for you, and you want to restrict their power to act only if you become mentally or physically incapable of acting, you can do that.

Instead of signing a broad Durable Power of Attorney that is effective immediately, you’ll want something known as a Springing Durable Power of Attorney. It springs to life only when the specified conditions occur – such as the loss of mental or physical ability to act, perhaps as certified by your doctor, or if you’re taken captive by pirates in Somalia.

You can revoke a power of attorney at any time by telling the agent you designated that you have cancelled or revoked the power of attorney. To be extra safe, you also should request the original back from the agent. Powers of attorney typically remain valid during your lifetime, until the earlier of the date you revoke it or about 5 to 7 years, all depending on your state’s law.

Upon your death all Powers of Attorney you may have given immediately become invalid. After death the terms of your Will or your state’s laws typically control the management of your property.

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