1. What is a Durable Power of Attorney?

A Durable Power of Attorney is a legal instrument by which one person, the principal, authorizes another, the agent, to act on the principal's behalf regarding financial or medical decisions. A Power of Attorney is one of the most simple and important planning tools available today.

2. Who should have a Durable Power of Attorney?

Every person over the age of 18 years should have a Durable Power of Attorney. More specifically, all persons wishing to avoid court involvement and at the same time provide for the continued management of their assets in the event of physical or mental incapacity, should have this document in place.

3. What is the difference between a Durable Power of Attorney and a General Power of Attorney?

Unlike a Durable Power of Attorney, a General Power of Attorney becomes ineffective if and when the maker of the instrument becomes incapacitated. A Durable Power of Attorney on the other hand maintains its effectiveness throughout the principal's incapacity. The word "Durable" signifies the indestructibility of the document by reason of incapacitation. For this reason, a Durable Power of Attorney is often the preferred choice.

Of course there are other means by which a Durable Power of Attorney may be terminated. A competent principal, for example, can revoke this document at any time. Additionally, a Power of Attorney is automatically revoked at the death of the principal.

4. How does a Durable Power of Attorney Work?

The law requires that both the principal and agent are of legal age at the time the power is given. Likewise, the principal must be mentally competent at the time the agent is chosen. If a power of attorney is intended to be Durable, there must be a provision stating this intention. Generally, such a provision includes language indicating that the authority conferred on the agent shall be exercisable regardless of whether or not the principal subsequently becomes disabled or incapacitated. For this reason, the principal should feel comfortable with the person he chooses to serve as agent.

It is important to understand that the principal does not give up his or her decision-making authority simply by signing a Durable Power of Attorney. Instead, the principal has merely named someone to make certain decisions under specified circumstances.

5. How long will a Durable Power of Attorney be Effective?

If properly executed, a Durable Power of Attorney will continue indefinitely so long as there is no termination date and provided the power is not limited to a particular transaction. The principle may however revoke the powers and duties delegated to an agent if such revocation is made in writing and acknowledged in the same manner as the power of attorney.

A Power of Attorney is automatically revoked upon the death of the principal, and a Power of Attorney which is not "Durable" will terminate upon the principal's disability.

6. Are there any drawbacks to a Durable Power of Attorney?

Yes. Like most legal and financial decisions, there are advantages and disadvantages. The advantages include relatively low cost, privacy, the opportunity to select dependable people and, until incapacity actually occurs, the opportunity to revoke or change the power of attorney. Problems can occur, however if you are not careful in the selection of your agent since this individual will have broad decision making authority in the management of your affairs.

7. What happens if I don't have a Durable Power of Attorney?

Without a properly executed Durable Power of Attorney, nobody, including your spouse, has the authority to make decisions on your behalf. The assets of a disabled individual will likely be frozen and inaccessible; and without advance directives, life-prolonging treatments that the patient may not have otherwise desired will probably continue.

For many families of a disabled individual, there is no choice but to seek court intervention and petition for the appointment of guardian and/or conservator. Unfortunately, such proceedings are costly and require on-going, strict court supervision.

A Durable Power of Attorney on the other hand, allows the agent to act immediately upon the principle's incapacitation.