Make sure all of your financial matters are taken care of in the event that you can’t.

• What is a Durable Power of Attorney?
• Who and for what reasons should one have a power of attorney?
• Who are the Parties to a Durable Power of Attorney?
• What are the Requirements for a Durable Power of Attorney?
• When Does Your “Springing” Durable Power of Attorney Take Effect?
• What Powers Does Your Agent Have?
• When Does Your Durable Power of Attorney End?

What is a Durable Power of Attorney?

A Durable Power of Attorney (POA) is a legal document in which you appoint someone the responsibility to take control over all of your legal or financial matters on your behalf. While some POA’s take effect immediately, others do not “spring” into effect until you become incapacitated due to mental or physical illness. This is the type of durable power of attorney that we create with you at MyWillPros.

Who and for what reasons should one have a power of attorney?

Essentially, any one with assets or with financial or legal obligations should have a power of attorney. With a properly prepared and executed Durable POA, if you are rendered incapable of handling your financial and legal affairs, important tasks like paying your mortgage, credit card and other bills, handling investments, renewing insurance policies, etc., would be handled by your Agent (also called your attorney-in-fact). Without a Durable POA, and the assigning of an Agent, your debts will in all likelihood go unpaid and assets jeopardized should you be stricken with a prolonged or permanent disability.

Who are the Parties to a Durable Power of Attorney?

Principal: The principal to a durable power of attorney is the person creating the document and granting the authority to an agent to make decisions regarding his or her legal and financial matters should he or she be unable to do so on their own behalf.

Agent: Also called an “Attorney-In-Fact”, the agent is the person being given responsibility to make legal and financial decisions for the principal, should the principal be unable to do so on their own behalf.

Successor Agent: When the principal is found to lack the capacity to make financial and legal decisions , and the appointed agent is unavailable, for whatever reason, the named successor agent would assume the role of agent.

What are the Requirements for a Durable Power of Attorney

The Creator AND the Agent must both be at least 18 years of age.

The Creator Must be Competent: The classic common law definition for competence has been adopted by every state in regards. The creator must:

1. Have the ability to understand what the meaning of durable power of attorney is.
2. Understand what the durable power of attorney contains.
3. Understand how a durable power of attorney works.

Having an attorney involved will ensure that competence, or lack there of, will not be an issue.

The Durable Power of Attorney must be in writing, signed by the Creator (Principal) and witnessed.

Different States have different statutes in regards to the proximity of the witnessing. Your lawyer will make sure that the document is executed properly.

An Agent Must Be Named: Within the document, an Agent is named.

No Undue Influence: As with any of these sensitive legal documents, a Power of Attorney may be challenged in court if there appears to be any undue influence in its drafting. An undue influence is, for example, your son tells you that unless you make him your agent in your Power of Attorney, he will not allow you to see your beloved grandchildren. An attorney will make sure there is no undue influence.

When Does Your “Springing” Durable Power of Attorney Take Effect?

Your “Springing” durable power of attorney takes effect only upon your disability or incapacity. Incapacity, or being mentally incapable of managing financial affairs, is determined and certified in writing by an examining physician and must be determined on a date later than the date the POA is signed.

What Powers Does Your Agent (Attorney-In-Fact) Have?

There are limited and unlimited powers of attorney. A limited power of attorney restricts the Agent’s powers, for example, to do banking transactions only; to do a real estate transaction only, etc. An unlimited power of attorney places no limitations on the Agent’s powers to act on your behalf in financial matters. The power of attorney prepared by us and forwarded to you can be either limited or unlimited.

When Does Your Durable Power of Attorney End?

Your written durable power of attorney remains valid as long as you are alive, unless you specifically revoke your documents, which you may do at any time, or a court invalidates the document.

Revoking Your Durable Power of Attorney. You can change or revoke a durable power of attorney document at any time. You must, however be sure that your agent is notified in writing of your intention to cancel or change the document. In addition, the original document should be destroyed in order to avoid confusion and any people or institutions who were aware of and would rely on the power of attorney should also be notified.

The Court’s Involvement: If someone questions the validity of your durable power of attorney, the matter may end up before a judge. These are the main reasons that the validity of your durable power of attorney may end up before a judge:

1. Lacking Capacity: Someone doubts that you had the mental capacity to prepare a legally valid power of attorney. The burden of proving that you were not of sound mind when you made your document falls on the person who challenges its validity.
   
   
2. Unfulfilled Requirements: A court could invalidate your power of attorney if it did not meet your state’s requirements. A very good reason to have your attorney involved.
   
   
3. Performance of Agent: If, after your power of attorney takes effect, someone believes that your Agent is not acting according to your wishes or in your best interests, the court can intervene. If a court finds that your agent is acting inappropriately, his or her authority can be revoked. If this should happen, the job will go first to the successor agent you name in your document.
   
   
4. Divorce: If you named your spouse as your power of attorney, his or her authority is automatically revoked in a number of states. In that case, if you named an alternate agent, that person will take over. However, should you get divorced, you should write a new power of attorney to clear any confusion.