What are Durable powers of attorney

Rachel Perdue Turner, Esquire

A proper estate plan includes the following legal documents: (1) Last Will and Testament; (2) Durable Power of Attorney; (3) Medical Power of Attorney; and (4) Living Will. In my estate planning practice, clients frequently inquire into the purpose of Durable Powers of Attorney. Since the purpose of Durable Powers of Attorney is a frequent point of discussion, below I discuss this estate planning tool's function.

What is a Durable Power of Attorney and Why Is It Important?

An individual's financial affairs are varied and can include the routine payment of utility bills and living expenses, the management of banking and brokerage accounts, the sale and/or management of real estate, the payment of state and federal taxes and the receipt of Social Security and/or other government or pension benefits. Individuals must actively manage their financial affairs. Many individuals are under the impression that, in the event of incapacity, a spouse or adult child can manage their financial affairs. This impression, however, is misguided.

A Durable Power of Attorney is a legal document that allows an individual (the "principal") to designate another individual (the "attorney-in fact") to make financial decisions on the principal's behalf in the event the principal is unable to make such decisions for himself or herself. Stated otherwise, a Durable Power of Attorney allows an attorney-in-fact to manage the principal's financial affairs, without court intervention, when the principal becomes incapacitated. An attorney-in-fact under a Durable Power of Attorney can make any decisions for the principal, with respect to the principal's financial affairs, that the principal could make for himself or herself if he or she was not incapacitated.

In the absence of a Durable Power of Attorney, no one can manage the principal's financial affairs unless a court finds the principal to be incapacitated and appoints a conservator and/or guardian to oversee the principal's financial affairs. Depending on the circumstances, conservatorship and/or guardianship proceedings can be expensive and lengthy. Moreover, the court may not select the individual to serve as the principal's conservator and/or guardian that the principal would have selected.

Practical Considerations

A Durable Power of Attorney does not give an attorney-in-fact the authority to override the financial decisions of the principal. The principal maintains the right to make his or her own decisions with respect to financial matters as long as he or she is not incapacitated.

Durable Powers of Attorney are revocable until the principal becomes incapacitated and loses the mental capacity to make financial decisions on his or her own behalf. At that point, Durable Powers of Attorney become irrevocable.

Durable Powers of Attorney are of unlimited duration. Stated otherwise, there is no specific time period after which they become invalid.

At the principal's death, the attorney-in-fact's authority under a Durable Power of Attorney terminates.

Conclusion

Durable Powers of Attorney should be part of any individual's estate plan. Individuals, however, who have a family history of dementia should be particularly cognizant of this fact and should execute such documents before they begin exhibiting signs of mental deterioration.

If you have any questions regarding this Article and/or would like to speak with the author regarding your estate plan, please contact Jenkins Fenstermaker, PLLC at (304) 523-2100.