Durable Powers of Attorney

A durable power of attorney allows you to appoint someone else (called the attorney-in-fact or agent) to manage financial affairs and assets should you be unable to do so or need help in managing.

A well-drafted durable power of attorney may avoid the need for the appointment of a guardian and/or conservator.  A guardian and/or conservator can only be appointed by the court and because it involves a formal judicial proceeding it can be expensive.

The “durable” in the durable power of attorney means there is language to the effect that the power is intended to survive the disability, incapacity or incompetency of the grantor and stay in effect until revocation or the person dies.

A durable power of attorney is only effective during one’s lifetime.  Some individuals believe that because they are appointed the agent under a durable power of attorney, they can wait until the grantor’s death and handles his or her affairs.  This is not true.

There are two basic types of durable powers of attorneys: springing and non-springing.

A springing power of attorney springs into effect only upon the happening of a triggering event.

Most springing powers of attorney designate that event as incapacity. The most common provision is that the agent needs to be in possession of a letter from a licensed physician stating that the grantor is unable to manage his or her financial affairs before the durable power of attorney takes effect.

A non-springing power of attorney appoints someone as an agent immediately, there is no condition that needs to be met for the agent to act.

The agent under a power of attorney is under a legal duty to act in the interest of the grantor of the power of attorney.  This legal duty is called a fiduciary duty and it is a duty of loyalty and conscientiousness that arises out of a special relationship of trust and confidence.

A durable power of attorney needs to be written to carry out your wishes.  For example, if you do not want your house sold, the durable power of attorney should not give the agent freedom to sell all real estate.  Each durable power should be drafted to fit your situation and carry out your wishes.

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Margaret Dean 816-753-3100