FAQ
Durable Power of Attorney
What is a Durable Power of Attorney?
A legal document executed by a Principal to authorize an Agent to act on their behalf as to their legal and financial matters, typically granting broad powers to act on their behalf either immediately or upon the onset of incapacity and continuing until the Principal’s death or termination of the Power of Attorney. Durable powers of attorney are regulated by each state.
Who is the Principal?
The one creating the Durable Power of Attorney and who appoints the Agent.
Who is an Agent?
Someone appointed by the Principal to make decisions about their legal and financial matters immediately or upon the incapacity of the Principal, depending on the choice of the Principal.
How do I select my Agent?
Most often friends and family members are the agents. It is important that the Agent you select is someone you fully trust to have a significant level of control over your financial and legal matters and someone who is willing to take on the responsibility.
Are there any restrictions on who can be an Agent?
Each State regulates these restrictions. However, in general, you cannot be under 18 years of age.
Can I name multiple Agents?
Yes, but unless you state clearly otherwise in the Durable Power of Attorney document, most states will require the Agents to agree on a matter for it to be considered proper authority to act. In that situation, disagreement between your Agents could cause delay in the performance of some duties.
What do I do with my Durable Power of Attorney once it is complete?
You must follow your state’s specific instructions regarding signature, witnesses and notarization. Keep the original document; provide copies to all the named agents or possible agents in the document. You can also provide a copy to your attorney or any one else you choose.
After the completion of the Durable Power of Attorney, what happens if I change my mind?
Durable Powers of Attorney can be revoked or replaced at any time as long as you have capacity. It is a good idea to periodically review your Durable Power of Attorney to make sure it still accurately reflects your wishes.
Who should have a Durable Power of Attorney?
Anyone over 18 years of age, or the age of majority in their State.
How much authority should I give my Agent?
It is personal preference. You can give your Agent the broadest authority possible to make all decision when you are no longer able, although some individuals create a more limited power of attorney in special circumstances to cover only certain scenarios, such as power to deal with real estate for a sale when the Principal is out of town. If you wish to limit the Agent’s authority, you can impose the limitations you desire.
Should I grant an Agent immediate powers or only powers to act once I become incapacitated?
It is personal preference. You can limit the Durable Power of Attorney until the moment incapacity comes into play because they are capable of managing their day-to-day financial and legal affairs. You can grant an Agent powers to act immediately which gives very strong powers to act as to your financial and legal matters, regardless of whether you are incapacitated. This can be valuable when you need someone to take care of your financial and legal matters for your personal convenience, and you have a very strong degree of trust that they will not misappropriate or mismanage your affairs. Limiting powers until determination of incapacity may create some delay in the powers coming into effect simply due to the requirement that doctors certify your incapacity, but that process is usually much quicker than working through the courts to determine incapacity.
How long does my Durable Power of Attorney last?
Your Durable Power of Attorney will last until death unless it is revoked or replaced.