What is a Durable Power of Attorney?

power-of-attorneyA power of attorney is a document that allows you to appoint a person to handle your affairs when you’re unable to do so. The person you appoint is referred to as an “Attorney-in-Fact” or “Agent.”

A general Power of Attorney authorizes your Agent to act on your behalf in a variety of different situations.  Those typically include situations where there is a need for handling banking transactions, writing checks, buying and selling securities, buying, selling and managing property (including real property if properly described), and preparing and filing tax returns.  Additionally, certain other powers can be added, such as dealing with trusts, making gifts, changing beneficiary designations, changing survivorship provisions, and delegating authority under the power of attorney.

A general Power of Attorney loses its effect when the grantor of the powers becomes incapacitated.  In order to allow a general Power of Attorney to remain in effect when the grantor becomes mentally incapacitated, certain wording must be added to the Power of Attorney.  When that wording is added, the Power of Attorney is said to be “Durable.”  Attorneys often include a Durable Power of Attorney when preparing a client’s estate plan in order to cover the possibility that the client might need someone to handle his financial affairs if he becomes mentally incapacitated.

It is important to remember that when you make the power of attorney document you must be mentally competent to do so.  This means you must understand what you are doing in appointing an agent.

What qualifications or characteristics should the agent have?  The biggest issue for you is appointing someone you trust.  This person most likely will have extremely broad access to your assets to do anything you can do.  So you need to feel confident that the person(s) you appoint will always have your best interests at heart.

You should also speak with persons you are considering designating as an agent to ensure that they understand what you are asking of them, and that they are willing to perform those duties.

Finally, it is wise to designate at least one back-up agent so if the primary designee is unable to perform at the time they are called upon, your family will not have to go to court to have someone appointed to act for you.

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