As an adult, you have the right to give someone else the legal right to make decisions on your behalf. You can even allow people to make these decisions after you fall ill or lose the mental ability to make your own choices. Through a durable power of attorney, any adult of sound mind can convey to someone else specified decision making rights.

A power of attorney is created by one person, called a principal, to give another person, called an agent, the ability to make decisions on the principal’s behalf. If the principal wants the agent to be able to make these decisions after the principal loses his or her own ability to make decisions, the power of attorney has to be made durable. Otherwise, the agent’s right to make decisions stop as soon as the principal loses the legal capacity to make choices.

In some states, all powers of attorney are presumed to be durable unless specifically stated otherwise in the power of attorney document. In other states it is just the opposite. Because of this, you must ensure that your power of attorney document complies with the laws particular to your state.

When creating a durable power of attorney, some states have pre-established forms in their state statute. These forms are optional, and tough they contain all the necessary language you need for your power of attorney to be valid, they may not contain all the options you want to include. It’s always best to talk to an attorney if you have questions about a durable power of attorney or need assistance creating the right document for your needs.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

One of the most  valuable estate planning tools you should have is a properly drafted power of attorney .  Given the importance of  a power of attorney, and the crucial role it plays in your planning you must ask yourself, how familiar are you with the different types of powers of attorney that can be used for various estate planning tasks?

First – the basics of a power of attorney…it  allows a person you appoint – called your proxy, attorney-in-fact or agent — to act in your place for financial or other purposes should you become incapacitated or if you can no longer act on your own behalf.

There are three main types of powers of attorney that are often used in estate planning:

General Power of Attorney

A general power of attorney is comprehensive and gives your agent all of the powers and rights that you have yourself, such as the right to sign documents, pay your bills and conduct other financial transactions. You could use a general power of attorney even if you were not incapacitated, but just needed someone to help you with financial matters. A general power of attorney would end upon your death or incapacitation unless you rescind it before then.

Durable Power of Attorney

Since a power of attorney normally ends upon your incapacitation, for estate planning purposes or incapacitation planning, you would need to have a provision added to make the power of attorney durable.  A durable power of attorney remains in effect after you become incapacitated. Without a durable power of attorney, if you become incapacitated, no one can represent you unless a court appoints a conservator or guardian. A durable power of attorney will remain in effect until your death unless you rescind it while you are not incapacitated.

Springing Power of Attorney

Powers of attorney can be written to “spring” into effect at a predetermined time or event, usually when you become disabled.  A springing power of attorney that goes into effect upon your disability prevents your attorney-in-fact from using the powers while you are able to exercise them yourself.  But what is the event that would ‘spring’ this power of attorney into effect?  That needs to be spelled out within the document.

Work with an estate planning attorney to make sure your estate planning includes a durable power of attorney that meets your specific needs and is properly drafted and executed.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.