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Why You Need a Durable Powers of Attorney

Durable Powers of Attorney

A person authorizing another to act is the principal, granter of the power, and the one given the power to act is the agent or the attorney-in-fact.  A durable power of attorney (DPOA) is a written document that grants power from the principal and designates an agent, to be his or her attorney in fact. As an agent of the principal, an attorney-in-fact is a fiduciary for the principal, so the law requires an attorney-in-fact to be completely honest with and loyal to the principal in their dealings with each other.  A DPOA must be in writing, must contain specific language and must be properly executed.  An attorney can assist you to ensure that the legal requirements for your DPOA are met.

A DPOA may be an alternative to the judicial process such as by a probate court in a guardianship or conservatorship proceeding. It allows the principal to anticipate a possible disability or incapacity and to provide an efficient, private, out-of-court mechanism for dealing with principal's affairs. DPOAs, must be drawn before the onset of disability or incapacity. Once the disability or incapacity has occurred, it is too late for the principal to sign a valid durable power and a guardianship or conservatorship proceeding may be required.  Most people do not anticipate their own disability or incapacity and most do not realize that they can make arrangements to handle their affairs during such a period. Therefore, this topic is a critical portion of any estate plan.

A DPOA may also be used to nominate a conservator, guardian of the estate, or guardian of the person in the event that there is a guardianship or protective proceeding involving the principal. The DPOA provides a mechanism for managing the affairs of a living person who becomes incompetent.  A DPOA terminates on the death of the principal when that fact becomes known to the agent.

DPOAs may also be used by a parent or guardian to delegate authority over a minor child or a parent or guardian in the armed forces deployed to a foreign nation may delegate authority over a minor child or ward.

A DPOA may be effective immediately upon execution or upon the determination of incapacity of the principal.  There are benefits and burdens to both.  Use of either should be discussed with an attorney to determine which application is best for your situation.  There are also limited powers of attorney that can be used for specific purposes.  Again, consultation with an attorney is appropriate to determine when such a document may be useful.

Simply stated, a DPOA is a document that allows a person, during their lifetime, to plan to have someone else assist in the management of their affairs.  A DPOA also allows a person and their family to avoid costly legal fees in the future when a gaurdianship or conservatorship would otherwise be required.  It is a critical part of the estate plan and most people could use one.