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FAQs: Durable Power of Attorney: Part 1

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I’ve been thinking recently about assets, particularly because mine are all shoes, and it occurred to me that one day I’ll have more—assets, that is—not shoes! And when I do, I’ll need someone to protect them. Assuming your property consists of more than a brimming closet, you may find it beneficial to spend a few days researching the topic. Or you can read the list of frequently asked questions below, to which I’ve researched the answers. The list is long, my friends, so read below for part one in this two-part series.

1. What is a durable power of attorney (POA)?

A power of attorney, or letter of attorney, is a document that authorizes another person, known as the agent or attorney-in-fact—usually a legally competent relative or close friend over 18 years old—to handle any combination of financial, legal and health care decisions. A power of attorney is alsoreferred to as a POA. Generally, one chooses a POA as a provision if he or she becomes incapacitated. You, the principal, may want (but do not need) an elder law attorney to draw up the document so that it specifies exactly which responsibilities you grant your agent. Establishing a durable power of attorney does not strip you of the power to make decisions; it merely assigns another person to share the responsibility.

2. What is the difference between non-durable, durable and springing powers of attorney?

A nondurable power of attorney cannot act on your behalf if you become disabled or incompetent. You would generally choose a nondurable power of attorney for a specific matter, such as handling your affairs in your physical absence. In estate planning, through which seniors plan for future incapacity, all powers of attorney are durable. This means the power of attorney is effective regardless of your health condition. A springing power of attorney becomes effective at a specific time in the future, perhaps in the event of an illness.

3. How do I decide who to choose?

It’s crucial you choose someone you trust to act in your best interests, per your explicit instructions—and it’s not always the easiest job. Your agent will have the freedom to handle your assets as he or she sees fit, so you may want to consider a potential agent’s financial knowledge or capacity for seeking and accepting outside help. Your agent will potentially spend a great deal of time acting on your behalf with no financial compensation for these efforts. Never allow anyone to force you to assign a durable power of attorney if you are not fully educated on the process and convinced you are choosing the most trustworthy, responsible person for the job.

4. How do I execute a durable POA?

A notary public or attorney must witness your signing the letter of attorney, and, in some states, you need two witnesses. You must be over 18 and fully competent, meaning you understand the implications of your decision. When filling out the form, you’ll specify exactly which powers you are transferring to the agent. If the durable power of attorney specifies responsibilities regarding real estate, the letter of attorney should be recorded with the Registry of Deeds, which you’ll find in the county courthouse where your property is located. Give the original copy to the agent if you’d like it to take immediate effect, and keep a copy for your own records. Alternatively, hold onto the original until you’d like it to take effect.

5. How is “incapacity” determined?

It’s important to identify a specific event, such as when your doctor certifies you are no longer able to handle your own affairs. In a legal document as important as this, you don’t want to leave anything open to interpretation.

Tomorrow I’ll be posting the next installment in this series, with more information on forming a durable power of attorney.

Be cautious of who you let walk in your shoes—

Lori Deschene

Read FAQs: Durable Power of Attorney–Part II

Posted in: Elder Law, Essential Documents, Powers of Attorney, What Legal Documents Do I Need?

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4 Responses to “FAQs: Durable Power of Attorney: Part 1”

1. MissSusan Says:
   

   Any ideas where I can find an elder law attorney in Brooklyn NY?

2. Lori Says:
   

   Susan,

   I recently came across a comprehensive website that I think may be helpful to you. The link for the main site is http://www.lawyers.com. I have already completed a search for elder law attorneys in Brooklyn, NY, and you can view the list here:

   http://www.lawyers.com/Elder-Law/New-York/Brooklyn/law-firms.html

   You may find this a little overwhelming considering its length. If you look to the right on the page, you’ll find a selection of articles that will help you in the process of choosing an attorney.

   Best of luck in your search,

   Lori

3. expect boy is very good soldier Says:
   

   Your website is wonderfull. I’ll come visit again.

4. What You Need to Know About Living Wills—Part One | Gilbert Guide Blog Says:
   

   […] Also known as a medical power of attorney or health care proxy, durable power of attorney (DPA) is another type of advance directive, and a powerful one. A DPA is a document in which you name the person you’ve chosen to make health care decisions for you if you are unconscious or unable to make medical decisions. A DPA should be someone who knows you well. FindLaw.com recommends naming someone who is comfortable asserting your wishes at end of life. Naming a DPA is optional as doctors are still bound to follow your written wishes as outlined in your living will. […]

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