Why Do I Need a Durable Power of Attorney Over Simple Power of Attorney?
A power of attorney is a basic legal document that is familiar to many people. But what, then, is a durable power of attorney, and when might you need one? A durable power of attorney serves all the same purposes as a simple power of attorney, but it provides the agent with more power to act when the principal isn’t legally able to. If you have specific wishes about how you want your health care carried out, or if you’re starting to plan for your estate or retirement, here’s everything you need to know about a durable power of attorney, including why it’s superior to a simple POA.
The Basics of Power of Attorney
The purpose of any power of attorney is to give another person the ability to act and make decisions on your behalf. The person who creates the power of attorney, known as the principal, names another person, called an agent, in a legal document, and thereby authorizes the agent to act as a legal proxy. There are a number of types of POA, including legal, medical, and financial, which give the agent the power to undertake a variety of tasks, including:
- Make medical decisions
- Enter contracts
- Sign checks
- Make business decisions
- Buy and sell property
- Sign checks
- File tax returns
Major Difference Between a Simple and Durable Power of Attorney
There is one defining difference between a non-durable and a durable power of attorney, and it is this: a non-durable (or simple/regular POA) ceases to apply should the principal become incapacitated, whereas a durable POA remains in effect even when the principal is no longer capable of making decisions for him or herself. With a durable power of attorney, therefore, the agent retains power even when the principal is incapacitated, so the agent can continue acting on the principal’s behalf.
Make Sure Your Wishes Are Always Respected Through a Durable Power of Attorney
If you have specific wishes regarding your health care, finances, or legal matters in your life, then a durable power of attorney is necessary to ensure that your wishes will be carried out and respected even when you cannot communicate them. A durable POA allows your agent to continue acting in your best interests when you become incapacitated, which could occur because of an accident, injury, or illness.
This often becomes important around the time that people start thinking about retirement care and estate planning, but since it also applies to health and end-of-life care, getting a durable POA is imperative for anybody who has strong feelings about things like life support and life-prolonging medical care. Your agent can keep your finances in order, deal with legal matters, conduct real estate business, and manage your health care on your behalf when you’re no longer able to do so, but only if you’ve completed a durable power of attorney.
Legal Provisions to Consider
Different states have various provisions when POAs are created, and you may have to specify in the document what kind of power of attorney you’re creating. However, it is possible that the default status of any POA is durable unless otherwise noted by the principal. When choosing an agent, you must select a legally competent adult who is at least 18, and you should pick somebody that you trust and who will respect your wishes. When you create your durable POA, make sure there’s a witness, and include a clause about how you want incapacity to be judged.
A durable power of attorney is necessary over a simple power of attorney for anybody who wants the peace of mind of knowing that wishes will always be respected. When you have an agent in place who’s been authorized to act on your behalf through a durable POA, that agent will be able to advocate and make decisions based on your wishes even when you’ve been declared incapacitated.
A durable POA, in short, will ensure that your financial, legal, and medical decisions are always made with your best interests in mind, and that your wishes regarding these matters will always be considered.