The term “Power of attorney” refers to a legal arrangement where one person is legally authorized to make legally-binding decisions for another person. In many situations, the power of attorney can arise automatically. For example, parents generally 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 grant power of attorney when it would not arise automatically. For instance, it may be necessary in cases where a person becomes unable to make legally-binding decisions on their own.

What Does “Durable Power of Attorney” Mean?

There are many different types of power of attorney arrangements available. “Durable power of attorney” is a specific type and is typically grants the most extensive decision-making powers. For instance, most power of attorney arrangements automatically expire when the principal dies or becomes incapacitated. The “principal” is the person who granted the power in the first place, while the person who receives the authority to make decisions is called the “agent.”

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

Generally, a persons is deemed to be “incapacitated” when they are unable to make their own decisions due to:

  • Illness;
  • Age; or
  • Injury.

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

Also, incapacity can lead to situations involving a more involved form of care and control over the incapacitated person, such as guardian advocacy or guardianship. As mentioned, a durable power of attorney will not expire in the event of the principal’s incapacitation.

In Which Situations Durable Power of Attorney Most Useful?

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

However, if your wishes are not in writing, these decisions will ultimately fall onto your next of kin, who may or may not honor them. To avoid this type of situation, 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 specific healthcare preferences and instructions are carried out in the event you become unable to express your wishes.

What Kind of Legally-Binding Decisions Can My Agent Make On My Behalf?

Typically, agents have two types of decision making powers: financial and healthcare-related decisions. An agent may be legally empowered by the principal to:

  • Keep the principal on or remove the principal from life support machines or devices;
  • Decide whether principal should undergo a surgery;
  • Manage the principal’s assets;
  • Purchase or sell real estate or property in the principal’s name;
  • Purchase or terminate various forms of insurance;
  • File taxes on behalf of the principal; and
  • Establish trusts on behalf of the principal.

The scope of powers of the agent may depend on several factors, including state laws, which can vary from area to area. It may be necessary to consult with a lawyer for advice and guidance regarding the specific laws of a certain state or area.

Can a Principal Designate More Than One Agent for a Power of Attorney?

Yes. Many principals may find it preferable and actually advantageous to have different agents fulfill different roles. For instance, suppose the principal wants his wife to decide healthcare-related matters and designate a child who will be their financial expert. It might be wise for the principal to divide the durable powers of attorney so that the wife has healthcare decision making powers while the child manages the finances.

A word of caution: If there is more than one agent, then there could potentially be conflict among the different  agents. The financial agent might have to sell the house in order to pay off the medical bills, even though the healthcare agent wants the principal to leave at home. If there is more than one agent, it would be very wise for the principal to spell out how to resolve disputes if one arises.

How Can a Lawyer Help with a Durable Power of Attorney?

As you might expect, granting durable power of attorney is not always a simple or straight-forward matter. If you think that this type of arrangement might be beneficial to you, you should speak with a wills, trusts, and estates lawyer in your area who specializes in estate planning. 

Your attorney can provide you with legal advice and guidance according to the specific laws in your area. If there are any legal disputes, your attorney can provide representation to resolve those as well.