Durable Powers of Attorney

A durable power of attorney (DPA) protects against the consequences of becoming disabled. A DPA is a document in which one person (the principal) gives legal authority to another person (the agent) to act on the principal’s behalf. State laws vary, but a DPA generally has to be signed and notarized and state that it shall be “durable”; that is, that it will continue in effect after you become incapacitated. It terminates at your death or cancellation (you can cancel it at any time while you are competent), or at a time you specify.

Your agent does not have to be a lawyer. In most states, the agent can be any adult or an institution. However, it should be someone who knows you well and whom you trust completely to manage your affairs.

The DPA lets you appoint an agent to manage all or part of your business or personal affairs. The law does impose the responsibility on the agent to act as your fiduciary, but it might be difficult for you or you family to take him or her to court, and since this person can in effect do anything with your money, you should be sure to appoint someone you trust and in whose judgment and ability you have confidence.

A DPA’s flexibility is one of its main advantages. You can limit the authority of the agent in the document, giving him or her as many or as few powers over your property as you wish, attaching conditions and so on.

While not required, a lawyer is advisable for drafting your durable power of attorney for property. A lawyer should make sure that your document meets your state’s requirements and that the powers you wish to give your agent are actually spelled out in language that will be legally effective.

Some powers may not be presumed to be within the scope of the power of attorney unless they are specifically spelled out--for example, the power to make gifts or loans or file tax returns. Some states require a specific format or specific wording in the document. Certain states provide a do-it-yourself “short form durable power of attorney” that allows you to select the powers to be granted to the agent, with state law providing an interpretation of what each power means. Even with these simplified forms, legal consultation is advisable.

An alternative noted earlier is the springing power of attorney, which becomes operative (“springs to life”) if certain conditions are met. See chapter 16 for more.

Making Treatment Decisions

You now have several ways to prepare for the possibility that you may sometime be unable to decide for yourself what medical treatment to accept or refuse. This chapter concludes with a discussion of health-care advance directives; the next covers living wills and organ donation.