Durable Power of Attorney
Life is uncertain. While this is true, proper preparation can help alleviate many hurdles that may be faced in the future. A document that many estate planning attorneys will recommend is called a “durable power of attorney.”
A “durable power of attorney” is a legal document that provides written authorization to act for another with regard to financial matters, business matters, or other legal matters.
Most durable power of attorneys are considered “springing,” meaning that document is not effective until the respective individual is legally disabled. Whereas, some durable power of attorneys are “non-springing,” meaning they are valid immediately.
If an individual who no longer has the capacity under the law to make decisions themselves does not have a durable power of attorney document, then Court involvement is usually necessary to appoint someone (an “agent”) with legal authority to manage business and financial affairs.
As true with any legal document, it must be drafted properly. One of the key features of a properly drafted power of attorney is considering the likelihood that third-parties who may encounter the power of attorney will accept the legal document without an hassle. Often, this means that broad language alone in the document is not sufficient. Power of attorney documents should list out detailed examples of the authority that is being bestowed upon the agent.
Another item to consider is a back-up successor. For example, say that my durable power of attorney only designates one individual as my agent in the event that I become legally incapacitated. If this agent is unable to serve for any reason (death, unavailable, etc.), it would be prudent to have another individual listed as a back-up agent. Some people designate two people to serve as agents at the same time. Keep in mind that having two agents who serve simultaneously can be problematic if there are not provisions in the durable power of attorney to mitigate a disagreement that may come up between the two agents.
Lastly, the agent that is given the right to make decisions for you in your legal disability should be someone you trust. This individual should be someone who is stable, has good character, and sound business judgment. This is very important because typically the legal system will not be supervising the agent.
If you have any questions about durable power of attorney documents, feel free to reach out to our office.
The information throughout this webpage is for informational purposes only and is not legal advice. Legal advice must always be customized to the individual case. Further, the information on this webpage does not create any attorney-client relationship between you and the Gilchrist & Fields Law Firm.
