Durable Power of Attorney

Your Durable Power of Attorney is an important document
because it is the only way to direct how your affairs must be handled if you become incapacitated.

Unless you use the term durable or enduring or lasting or continuing, your document will expire when you become mentally incapacitated.

It will in any event expire upon your death (as all POAs do!) and then the person whom you appointed as executor in your Last Will and Testament will be making decisions and handle the winding up of your estate.

The terms used vary according to country or jurisdiction: Durable (USA); Continuing (Canada, Scotland); Lasting (England, Wales); Enduring (Australia, South Africa) etc.

Is there a Difference between a Power of Attorney and a Medical Power of Attorney?

You can distinguish between a document that empowers your Agent to handle your property and financial affairs and a separate document that handles your health and welfare.

And you can appoint different people to be your agent in each case.

There is no provision in a general power of attorney to empower someone to make medical decisions on your behalf. You need to have a separate healthcare proxy (medical power of attorney) in place. Note: a legally married spouse already has the right in law to speak on your behalf in medical matters, if you are incapable of doing so.

Incidentally, there are also additional restrictions as to who can speak on your behalf in medical matters. For example, attending medical personal, health care workers, your landlord etc. may NOT be appointed in your Medical Power of Attorney.

The choice of your Agent is most important - make sure you name someone you trust implicitly. You should also consider appointing more than one person and also naming replacement/substitute attorneys should your initial choice(s) not be able/willing to act on your behalf when the time comes.

Durable Power of Attorney - Author's Personal Note:

Becoming incapacitated can be the result of an accident, sudden debilitating stroke, dementia etc.

If you have elderly parents, you and your loved ones may want to have an open discussion about having a Durable Power of Attorney, because we simply cannot foresee how much time we may have to get this document in place.

Can a Person with Dementia Sign a Legal Document?

No.

That's why it's so important to plan ahead and get a Lasting or Durable Power of Attorney in place whilst elderly parents still have mental capacity to legally execute this document.

If a parent becomes mentally incapacitated before granting a Power of Attorney, a family member will need to follow legal process to obtain conservatorship (also called adult or elderly guardianship).

This entails going through a court proceeding to provide evidence of the parent's incapacity and more importantly, proof of the family member's competency as guardian or conservator.

Once the court is satisfied on both counts and only then will a judge grant the right to the petitioner to make financial and/or medical decisions on behalf of the parent.

Having made a Durable Power of Attorney does not mean you do no longer have a say in how your matters must be handled. Your Agent/Attorney must still abide by your decisions, regardless whether he/she considers them wise.

You can also list restrictions on the document which must be followed (more about that further down on this page), even when you've become incapacitated and can no longer speak for yourself.

Before completing your POA, it is important to review the following information and guidelines:

• Choosing your Agents/Attorneys and directing how decisions must be made;
• The legal requirements for your document;
• The various limited Power of Attorney documents that you can use;
• Lasting Power of Attorney - There are some very good guidelines and examples which can benefit anyone (wherever in the world) even though the page is specifically aimed at our site visitors from England and Wales.

Some explanatory notes about our free legal form:

When compiling a general durable or enduring power of attorney, you can list a myriad of provisions for which you grant the authority to act. A general POA will typically state: "including but not limited to the following:"

* Property transactions
* Banking transactions
* Claims, litigation and debt
* Real estate transactions
* Investments
* Waiving of rights
* Business transactions and/or partnerships
* Attending meetings and the right to vote
* Enter into agreements
* Stocks, bonds, commodity and share transactions
* Insurance and retirement transactions
* Tax and retirement matters
etc.etc.

However, in our free legal template we do not list all the powers granted such as the above, but rather make provision for specific limitations or restrictions that you want to note, i.e. that you do NOT want to empower your Agent to do.

Can you Limit a Power of Attorney?

Yes. And you can give very clear instructions what your agent can or cannot do with various assets.

For example, you may state that you do not ever want a certain property to be sold (because you've bequeathed it in your Will) or never to make a personal loan to family members etc. There is no need to provide a reason for any limitations you wish to add.

Where we do list specific provisions in our Durable Power of Attorney template, it is because they are not automatically granted in some states or countries. (Example Gifts as per paragraph 3 in the free form). It remains your choice whether you want to include them or not in your document.

Do You Need to Pay Your Agent in a Power of Attorney?

If you appoint a professional such as an attorney or accountant as your Agent, they will most probably be compensated. Paragraph 7 in our template makes provision for payment to your agent. If you appoint your spouse or anyone who is willing to act without payment, simply delete that provision.

The same applies to records of accounting as described in paragraph 6 which you can delete (if you appoint your spouse, for example) or specify different periods of accounting required.

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