A durable, or enduring, power of attorney is an important tool in the advanced directives toolkit. Read on to learn all about durable power of attorney and how to set it up.
What is Durable Power of Attorney?
When you appoint someone with power of attorney, you are giving them access to much of your life. This includes economic assets, medical, and legal affairs. A “durable” power of attorney means the appointed person keeps the power of attorney even if you are mentally incapacitated.
Somebody who is given power of attorney can sell property – such as a home or car – on behalf of the appointer. In some cases, they also may be able to sign legal documents on their behalf. Power of attorney also enables an individual to do financial transactions and make health care decisions for the person who gave them the power.
Any mentally competent person who is a legal adult (18 or older in the United States) can be appointed with power of attorney. Typically, legal experts suggest a family member or spouse as the appointee because the durable power of attorney gives the individual so much access to information and valuables.
Those with power of attorney cannot do a handful or things, however. He or she may not sign a witness statement, vote in an election, or tamper with a last will and testament.
The Step-By-Step Process
- Before you sign any legal documents, talk with the person who you are appointing with power of attorney. Make sure that the appointee is aware of the possible responsibilities that they’ll encounter. Explicitly state your wishes for economic, legal, and medical matters.
- Work with an attorney to draft durable power of attorney forms, or obtain those forms from the state. The best option though is to work with an attorney who can guarantee that specificities are in the paperwork. Name your agent who has power of attorney, and many legal experts suggest having an alternate person in case something happens to the primary agent. This is particularly important if the person is a spouse, or a close family member like a parent, who may also be incapacitated if there is an emergency. There must be two separate documents to specify someone as a financial & legal agent and as a medical agent. Typically, the medical durable power of attorney can be established in a living will.
- Meet with your potential agent again once the paperwork is all drawn up – don’t forget to leave it unsigned for now. Re-review your wishes with them and answer any questions they have.
- Go with your agent to a notary, bring two copies of the paperwork. Sign the paperwork in front of the notary so that they can be notarized. This process is essential for the validity of the durable power of attorney paperwork.
- Distribute copies of the now notarized power of attorney documents to relevant parties. You should keep an original in a safe place. The other should be with your appointed individual with power of attorney. Family members, spouses, and the relevant professionals should also receive a copy.