Family Law Child Custody

What Is A Durable Power Of Attorney And Why Would You Want One?

So just what is a durable power of attorney? Well, it is a legal document that grants a person (known as the attorney-in-fact) the authority to act on behalf of the principal. It is called durable because it will remain valid even in the event that the principal should become disabled or incompetent for some reason. Note this is different to a plain 'power of attorney' as this is not valid should the principal fit into this category. There are also two different 'power of attorneys'. A general power of attorney authorizes the attorney-in-fact to act for the principal in all matters, and a special power of attorney has limitations in that it covers only certain specified matters. After working at a law firm, which dealt mainly in estate planning, I should inform you that a durable power of attorney is a serious document that should not be entered into lightly and requires a great deal of consideration.

If you are considering getting a durable power of attorney then you will have to name somebody as your attorney-in-fact. Your named attorney-in-fact will have the authority to manage not just your bank accounts, but will also be able to open accounts in your name, dispose of your assets, and even sell your home which means that you must completely trust this person wholeheartedly. Some states also require that a person must have authority under a durable power of attorney for homestead property before they could sell your home. You would need to contact a licensed attorney in your state to check if this is required in your area.

In my own experience I have seen a number of situations in which having a durable power of attorney was completely necessary. I have often received calls from clients who are coping with personal tragedy and urgently require a durable power of attorney to be drafted. These situations can be incredibly difficult to witness but by having these important legal documents in place it can make the situation much easier for the people involved.

If you are in a position where you don't have a family member or loved one who you wish to serve as your attorney-in-fact, then you do have the option of naming a financial institution to act on your behalf. This is often a choice made by people with larger estates to make sure that their assets are managed in a competent manner or in the best possible way. Another important fact to note is that a durable power of attorney does not necessarily tell your attorney-in-fact how you actually wish your assets to be managed during your life and this is even more important when the document comes into play following your death.

So to ensure that your wishes are respected and your assets managed or disposed of in the correct way following your death you should have a trust implemented or a detailed plan drawn up. Remember that a durable power of attorney can only grant authority to the person you name as your attorney-in-fact to manage your assets and will not actually specify how you want them to be managed. For this you will need to execute another legal document such as a trust or a will to make specific provisions or arrangement following your death.