Powers of attorney are used in the field of estate planning to account for the possibility of incapacity. A comprehensive estate plan should address the condition that you may be in prior to passing away. You may become unable to handle your own affairs late in your life. If you execute a power of attorney, you can name someone to make decisions on your behalf.

Durable Powers of Attorney

There are different types of powers of attorney. A standard power of attorney would not remain in effect if the grantor or principal (the person creating the power of attorney) was to become incapacitated. For this reason, durable powers of attorney are used for incapacity planning purposes.

A durable power of attorney will stay in effect even if you become incapacitated.

You have no way of knowing if and when you will become incapacitated. Let’s say that you decide to prepare for this possibility in advance when you are 70 years old. You create a durable power of attorney. You would be giving the agent the power to act on your behalf immediately, even though you are perfectly lucid and capable of handling your own affairs.

In some jurisdictions you can account for this situation by creating a power of attorney called a springing durable power of attorney. This type of POA springs into effect only if you become incapacitated.

You have to consider the pros and cons of of a springing durable power of attorney. Yes, it is comforting to know that the agent won’t be able to act unless you become incapacitated, but there is a drawback. It can be time-consuming to prove that someone is incapacitated, and this can create difficulties if immediate decision-making becomes necessary.

Who Can Create a POA?

Now that you know a bit about powers of attorney and how they are used in the field of estate planning, you may wonder about the qualifications. Are there any rules regarding the background that you must have to create a power of attorney?

In general, anyone can create a power of attorney. The only rules would involve age and mental capacity. To be able to create a valid power of attorney, you must be of the age of majority in the jurisdiction within which this legal device is being executed.

To create any legally binding device you must be of sound mind. This is somewhat relevant when it comes to the utilization of powers of attorney as they apply to incapacity planning.

To be certain that your power of attorney will be deemed valid in the eyes of the law, you should be quite proactive about implementing your incapacity plan. You want to act well in advance of any signs of incapacity.

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Ryan M. Denman and Dennis D. Duffy

Duffy Law Office, PLLC