In this post, I discuss the durable power of attorney and the potential benefits that it can offer.
As discussed in a previous post, a power of attorney is an authorization for one person to act on behalf of another person. There are several different kinds of powers of attorney, with the value of each determined by the situation. The most important type of power of attorney when addressing estate-planning matters is the durable power of attorney.
Durable Power of Attorney
A durable power of attorney survives incapacity, meaning that the attorney in fact—that is, the person authorized to act on the principal’s behalf—retains power to act on the principal’s behalf even if the principal becomes incapacitated. Unless specifically provided otherwise, a power of attorney does not survive incapacity.
Springing Power of Attorney
A springing power of attorney is a type of power of attorney that becomes effective only upon the principal’s becoming incapacitated. A POA of this type should be drafted with great care to ensure that there is a proper procedure for determining incapacity that safeguards the rights of the principal. A common method is to require a signed affidavit from two independent physicians testifying to the principal’s incapacity before the springing POA becomes effective.
Planning for Incapacity
So, why have a durable power of attorney? A durable POA is a good way to prepare for incapacity and can help your family avoid the frustrations and complications of a guardianship proceeding. It allows your family to act on your behalf should you become incapacitated without having to involve the courts. A durable POA—particularly in its springing form—should be part of most estate plans. Coupled with a living trust, a durable POA can help prevent the need for a costly and cumbersome adult guardianship.