Durable Power of Attorney
A durable power of attorney is an important piece of your estate planning package. It is a legal document that identifies a person to act on your behalf in legal and financial matters if you are incapacitated.
Types of Power of Attorney
A durable power of attorney is effective immediately and gives your agent full authority to act on your behalf. This remains in effect unless or until you revoke it.
A springing power of attorney comes into effect only on a finding that you are unable to make decisions. A limited power of attorney specifies the decisions that your agent can make on your behalf.
What Kind of Power of Attorney Should You Have?
Most people use a durable power of attorney in their estate plan. This is primarily because a springing power of attorney requires some kind of medical or judicial determination that you are unable to make decisions. Since the primary value of a power of attorney is to allow someone to step in seamlessly and take care of your affairs, many do not want this delay or uncertainty.
You have to remember, though, that a durable power of attorney is a general power of attorney and allows your agent to act on your behalf for virtually any decision other than health care decisions.
This means the individual should be someone you absolutely trust. It also means you should keep the signed document in a safe place with your will and other estate planning documents.
If you do not feel comfortable with this broad power, you can draft a springing power of attorney. If you choose this route, you should work with your lawyer to be as clear and specific as you can about what triggers the power. You can read more here about the reasons most estate planning attorneys recommend a durable power over a springing power.
A limited power of attorney is generally not used in estate planning. You might fill out this kind of power of attorney form if you have a particular transaction you need to delegate to someone. For example, if you are closing on a real estate sale and have to be away at the closing you might give a limited power of attorney to someone to sign documents for you.
Can a Power of Attorney Authorize Medical Decisions?
The power of attorney document does not authorize the person to make health care decisions. To do this, you will need a separate document called a health care proxy. This is also sometimes known as a medical power of attorney.
Many people choose to divide these various responsibilities among different family members. If you have a spouse and two adult children, you may name one person as a personal representative, another as a health care proxy, and the third as the durable POA.
Can You Give More than One Person a Power of Attorney?
Generally it is not a good idea to give more than one person the same authority at the same time. This can lead to conflicting decisions and confusion. You can name a primary power of attorney and as many alternates as you want. If the primary power of attorney is unable or even unwilling to take on that role, the authority will move to the next person on your list. You can name as many alternates as you want.
Do You Have to Do a Complete Estate Plan to Have a Power of Attorney?
A power of attorney, like a health care proxy, can be a standalone document. While it is a good idea to take care of all of your estate planning needs at once, if you are not ready to do that yet you can still create a power of attorney. The same is true for a health care proxy.
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