Understanding the Durable Power of Attorney
What It Is and How It Works
If you’ve thought much about or talked with anyone regarding the preparation of an effective estate plan, you’ve likely heard the term “power of attorney.” You may even be familiar with the term “durable power of attorney.” But what does that mean? Durable, as opposed to what? What is it and how can it benefit you?
The Durable Power of Attorney—Defined
Let’s define power of attorney first. A power of attorney is a legally binding document that gives another person the authority to make decisions on your behalf. There are powers of attorney that grant the authority to make all types of decisions—legal, medical, financial and otherwise. You can also put a power of attorney in place that limits the scope of decision-making. You may, for example, put a medical power of attorney in place, giving another party the right to make medical decisions on your behalf.
Powers of attorney typically come in two different forms—the springing power of attorney and the durable power of attorney. With the springing power of attorney, there are typically conditions that must be met before the power of attorney will go into effect. For example, your power of attorney may allow you to retain control over your affairs until a licensed medical practitioner declares in writing that you lack the capacity to manage your own affairs. With a durable power of attorney, you immediately convey all powers to the agent (the person designated to act on your behalf).
With a springing power of attorney, you can still control your affairs while you are able. With a durable power of attorney, you give up that right. However, with a springing power of attorney, there can be delays or other problems for your agent. The durable power of attorney allows them to act immediately.
Putting the Durable Power of Attorney in Place
It’s customarily a simple process to put a durable power of attorney in place. You may need witnesses and you may need to sign in the presence of a notary, but the document is typically pretty straightforward (you’ll want it prepared by an experienced attorney, though).
Ending the Durable Power of Attorney
Unless otherwise terminated, a durable power of attorney is in effect until your death. It conveys no authority after your death. A durable power of attorney can end before your death, though, as a result of any of the following:
- A revocation of the power while you retain mental capacity
- A legal divorce from the person named as agent (in some states)
- The determination by a court that the power of attorney is not valid
- The person named as agent dies or is otherwise unable to serve (and you have not named an alternate)
At MCIS Law, PLLC, in Stafford, we aggressively advocate for businesses and individuals in southeast Texas. For a confidential consultation with an experienced and knowledgeable lawyer, email us or call our office at (346) 297-0121. We accept all major credit cards.