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The Importance of a Durable Power of Attorney

April 13, 2018

How many of us have thought about what would happen to us if one day we lost the ability to speak or get out of bed, or recall previous events. What would you do? Would you be protected? As Kurt Vonnegut put it, there are fates worse than death. Whether from a car accident, stroke, or Alzheimer’s disease, an overwhelming majority of Americans will not live in perfect health until the ripe old age of 95 and die peacefully in their sleep. Instead, many of us will face increasing health issues as we get older. Some of us may even lose the ability to care for ourselves. If this were to happen to you, or someone you loved, what would you do? How would you protect your interests or that of your loved one?

One way is with a Durable Power of Attorney. A Durable Power of Attorney is one of the most important documents anyone can have in place in the event they are unable to care for themselves. A Durable Power of Attorney acts as a permission slip, giving authority to a third party to do things on behalf of someone else who cannot do it for themselves. If done properly, the Durable Power of Attorney may very well prevent you from having to be declared incompetent in court if you something bad happens to you. A simple document can save you time, money, and embarrassment, and accomplish everything that you need to continue to function as a private citizen. For example, if you or someone you love, suddenly has a stroke and can no longer speak or think clearly, what would you do? Without a Durable Power of Attorney in place, you will most likely have to seek what is commonly called a guardianship over them. That means going to court, filing the paperwork, publicly serving your loved one, and hauling him or her into court. The court system is going to appoint a temporary guardian, who is a stranger, to come into your loved one’s life and business. Once in court, you will have to sit across from that person and explain that he or she can no longer take care of his or herself. And your loved one may not understand what is happening. And, when everything is said and done, the judge may decide you are not the right person for the job, and appoint a third party, such as a social worker or an attorney, to be your loved one’s guardian.

But, a Durable Power of Attorney, properly drafted, executed, and recorded by a knowledgeable estate planning attorney, could very well keep the above scenario from happening to you. A traditional Power of Attorney is only valid as long as you have your wits about you. In other words, when your mind goes, so does the Power of Attorney. Contrasted with a traditional Power of Attorney, a Durable Power of Attorney, if designated so, will either become effective or continue to be in effect if you become mentally incapacitated. There are many variations of Durable Powers of Attorney. Some are limited to what authority the agent or attorney-in-fact, may do for or in the shoes of the principal, or person who has signed over the power of attorney. While others are vast and incorporate many different elements, which attempt to cover any and all bases to address any complications that the principal may encounter in his or her lifetime.

Not all people are the same, and not everyone has the same issues and needs. Therefore, it is extremely important to discuss your options with an estate planning attorney to figure out which documents you need and how you would like your Durable Power of Attorney worded. You also want to make sure the person you have designate to be your agent, attorney-in-fact, or fiduciary, is the person you can trust and count on when things get tough. You also want to make sure you have a list of at least two or three people waiting in the wings if the person you select cannot or will not accept the role.



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