Durable Power of Attorney

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What Is Power of Attorney?

Power of attorney” is a legal arrangement in which one person is empowered to make legally-binding decisions for another person. In many situations, power of attorney arises automatically. For example, parents have power of attorney over their minor children, and married individuals have power of attorney over their spouse, if the spouse becomes incapacitated. However, in some cases, it makes sense to affirmatively grant power of attorney when it would not arise automatically.

What Is Durable Power of Attorney?

There are many different types of power of attorney arrangements and "durable power of attorney" is the most extensive. Most power of attorney arrangements automatically expire when the principal (the person who granted the power in the first place) dies or becomes incapacitated. Generally, someone is deemed to be “incapacitated” when they are unable to make their own decisions due to:

Power of attorney can generally be revoked by the principal at any time. Since an incapacitated person cannot make a decision to revoke it, the law assumes that they would revoke it in such a situation, if they could.

However, durable power of attorney continues even if the principal becomes incapacitated. The principal has to make it extremely clear and explicit that this is the arrangement that they want.

When Is Durable Power of Attorney Most Useful?

Durable power of attorney is extremely useful if you want to make important healthcare decisions well in advance. For example, if you are injured and you do not wish to be kept alive by artificial means when there is no realistic chance at any meaningful recovery, you should make your wishes known to your family well in advance.

If your wishes are not in writing, these decisions will ultimately fall onto your next of kin, who may not honor them. To avoid this, you can grant durable power of attorney to a trusted friend or family member, who you know will respect your requests. They will then have the legal authority to ensure that your healthcare preferences are carried out in the event you become unable to express your wishes.

How Can a Lawyer Help?

As you might expect, granting durable power of attorney is not always a simple matter. If you think that this type of arrangement might be beneficial to you, you should speak with a lawyer who specializes in estate planning.

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Last Modified: 02-18-2014 12:51 PM PST

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