What Is A Durable Power Of Attorney
August 5, 2022
BY: Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain
Estate Planning Lawyer
A durable power of attorney document is one of the most important parts of your estate plan. It allows you to appoint someone to make decisions for you in the event that you become incapacitated. If you fail to appoint someone, your family and friends may not have the authority to make decisions for you, which could result in a judge appointing a person for this task. This is why you should speak to an estate planning lawyer for help.
Power of Attorney Misconceptions
Unfortunately, the legal issues surrounding durable power of attorney are often misunderstood. Below are some of the most common misconceptions about durable power of attorney:
- I can create my own power of attorney online – While there are options available to create a power of attorney online, these documents are not one-size-fits-all. Using a cookie-cutter program online may not cover specific situations that you need to address. An estate planning lawyer will be able to ensure that your wishes are taken care of in the manner you want.
- Once I create a durable power of attorney, I will never have to do anything with it again – These documents need to be updated regularly. You may change your mind about who you want to handle your business, laws may be updated, or your finances may change. All of these things may require updates to your durable power of attorney.
- I should not make my power of attorney active until I become incapacitated – While the timing of a power of attorney is a personal preference, waiting until you are incapacitated can require at least one doctor and sometimes two to determine whether you cannot make decisions for yourself. If there is an emergency situation, a doctor may not be willing to sign off that you are incapacitated, so you may wish to address the situations in which your power of attorney will become effective.
- I am young, healthy, and have no assets, so I do not need a power of attorney – Every person that is over the age of 18 needs to have a durable power of attorney. None of us know when something catastrophic could happen, and we need to have a plan in place in the event we become unexpectedly incapacitated. Failing to have documents in place can result in time-consuming and expensive court actions.
- A durable power of attorney survives death – This is a common misconception, but durable power of attorney documents are terminated upon death. This means that whoever was granted authority by the power of attorney loses that authority upon your death. A durable power of attorney will, however, remain in effect if you are incapacitated.
- I can sign a power of attorney if I am legally incompetent – This is absolutely not true. That is why it is important to be sure that you and your family members have a power of attorney put into place before anyone is found incompetent or incapacitated. Waiting until you or your loved one are already incapacitated is too late and will require court action instead.