Durable Power of Attorney

As a person ages, his or her ability to make decisions becomes a bit less clear. And, as a person gets older, it becomes more likely that he or she will experience some type of health situation in which they cannot voice their own wishes. In these situations, it is beneficial to have a durable power of attorney, often called a POA.

What Is a Durable Power of Attorney?

A durable power of attorney is a document that appoints an individual, including a senior, to act as that individual's agent. As an agent, this individual is given specific power to make key decisions on behalf of the senior. The senior can appoint anyone he or she wants to hold this position. It may be a family member or friend. In some cases, it is a trusted attorney. The individual working as an agent like this can make decisions about health, finances, and legal matters on behalf of the senior.

What Does a Durable Power of Attorney Do?

The law defines two types of durable power of attorneys. Within the legally binding document signed outlining this appointment of an agent, it will list specifically what the individual can do and what he or she cannot do. That's important since the power of attorney is not given any rights outside of that document in most states.

A power of attorney for healthcare is very common. It gives an agent the ability to make health-related decisions on behalf of the senior. This may include what type of health care is given, what medications are given, and what end of life decisions are made. The second type is a power of attorney for finances. This person often handles the legal and financial decisions for the senior. One person can hold both positions.

Remember, if you cannot do so yourself, and you do not have a durable power of attorney, key legal actions cannot happen. Without a POA, Medicaid planning, check writing for bills, and important healthcare decisions are not being made on your behalf according to your wishes. When you have this person assigned, you are better able to maintain some level of control of who will make these decisions for you. Otherwise, the state may appoint someone to make such decisions based on your heirs or your marital status.

What Is the Difference Between A Power of Attorney and a Durable Power of Attorney?

The term power of attorney, which is most commonly referred to, is a legal document that gives someone else the ability to make decisions or take actions for you. Some are labeled as a durable power of attorney. This means that the agent's right to make these decisions and take these actions remains valid and effect long term. This remains in effect if you become incapacitated and unable to make decisions for you. Comparatively, any legal document that does not use the word “durable” will not hold this long-term establishment. Rather, the power of attorney remains in effect only until you become incapacitated. At that time, it ends.

How Do I Create a Durable Power of Attorney?

In order to obtain a power of attorney, an individual must demonstrate that he or she is of sound mind. The individual should be able to clearly make the appropriate decision on his or her behalf. It is best to have a durable power of attorney in place long before any type of cognizant concerns arise, even if you think you will never need to use it. If the senior becomes incapacitated for any reason, such as going into surgery or after a fall, or that individual becomes impotent, such as after a stroke or through dementia, this document gives someone the senior has selected listed to make decisions on his or her behalf.

Individuals who wish to have a durable power of attorney should speak with a family law or elder law attorney that you trust. Then, sit down and speak to the person you would like to name as your agent. What does he or she need to know about your wishes? What do you want this person to do when handling your assets? The goal of any senior agreeing to a power of attorney should be to choose someone that will honor those beliefs and needs.

Once authorized by the court of law, the power of attorney becomes active. It is important for seniors to recognize that this legal agreement is vital, but not necessarily overshadowing your decision-making ability. When you obtain health care or make financial decisions, your wishes are still met unless there is some reason for when a power of attorney is necessary. In other words, as long as you remain competent and able to do so, you will be able to make your own decisions.

Additionally, a durable power of attorney can be changed at a later date. If you decide to name someone else as your agent, be sure that you do so while still mentally sharp and clear.

What Does a Durable Power of Attorney Cost?

It is possible to pay for a power of attorney. You will most likely need to set a fee schedule with an elder law firm and/or attorney. Legal fees vary greatly depending on a multitude of factors.

What Forms Are Used to Create a Durable Power of Attorney?

It is often best to work with a trusted family attorney in the creation of a durable power of attorney. However, you can file this legal document yourself as well. It is possible to find legal forms for creating this power of attorney agent through various areas including local and county clerks offices, most attorney’s offices, and state departments. However, every state's rules are different. You will need to obtain a durable power of attorney document created in your state and up to date with local laws.

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