Durable & Special
Powers of Attorney

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What Is a Durable Power of Attorney?


A durable power of attorney is a document that allows one person (the principal) to authorize another person (the attorney-in-fact or agent) to act on his or her behalf with respect to specified legal obligations even if the principal subsequently becomes incompetent. This document names the person(s) authorized to make decisions and specifies those decision-making powers it confers.

A durable power of attorney can play a significant role in estate planning. Once in place, the power grants a delegation of financial decision-making powers immediately upon execution to an appointed agent for the life of the principal. A springing durable power of attorney can also be created to become active at a future date, usually when the principal is deemed to be incompetent. By granting these rights to a family member, an advisor, or a trusted friend, the principal is assured that transactions, which might otherwise have been impossible, can occur even if the principal becomes incompetent or incapacitated. As such, having a durable power of attorney can overcome considerable obstacles for an elderly, incompetent, or dying person. Today people are not only concerned with the disposition of their property at death, but also with the management of their property during their lifetimes.



How a Durable Power of Attorney Works



The purpose of a durable power of attorney is to grant an appointed agent the legal right to act on behalf of the person who grants the power—the principal. The agent's authority is set forth in the document. Some grantors execute a "general" power of attorney which authorizes broad decision-making powers in virtually all legal matters. Others, with more narrow goals and objectives, execute a "special" or "limited" power of attorney that substantially limits the agent's authority.



Who Can Be an Agent or Attorney-in-fact?



The principal can assign anyone to act as the agent or attorney-in-fact, such as a spouse, friend, or family member.  There is no requirement that the agent be a licensed attorney. In addition, most durable powers of attorney include an alternate agent that will step in should the acting agent become disabled or deceased.



Requirements for Creating a Durable Power of Attorney



A durable power of attorney requires the principal to be mentally competent when executing the documents. If questions arise as to the principal’s competency, a physician can examine the principal and make a certification as to his or her competency. In addition to competency, state statutes may impose certain language requirements and witnessing requirements, which vary by state.



State Requirements Vary



Power-of-attorney requirements vary from one state to another. Generally, however, they include detailed powers which relate to:



           real property transactions

           bond share and commodity transactions

           banking transactions

           business operating transactions

           insurance transactions

           retirement and pension benefits

           beneficiary transactions*

           gift transactions*

           fiduciary transactions

           claims and litigation

           family maintenance

           benefits from military service

           records, reports and statements

           estate transactions

           delegation of authority

           all other matters.



* These powers must be clearly authorized in the power of attorney document to be effective.



Agents may also be given the power to make some health care decisions including the right to:



           employ or contract with servants, companions or health care providers

           admit or release the principal from a hospital or health care facility

           inspect records including medical records

           make anatomical gifts

           request an autopsy

           refuse or consent to medical treatment.