Durable Power of Attorney: What It Is

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Many of us have questions about a durable power of attorney so here's an FAQ on what everyone should know.

What is a durable power of attorney (POA)?
A power of attorney, or letter of attorney, is a document that authorizes another person, known as the agent or attorney-in-fact -- usually a legally competent relative or close friend over 18 years old -- to handle any combination of financial, legal and health care decisions. A power of attorney is alsoreferred to as a POA. Generally, one chooses a POA as a provision if he or she becomes incapacitated. You, the principal, may want (but do not need) an elder law attorney to draw up the document so that it specifies exactly which responsibilities you grant your agent. Establishing a durable power of attorney does not strip you of the power to make decisions; it merely assigns another person to share the responsibility.

What is the difference between non-durable, durable and springing powers of attorney?
A nondurable power of attorney cannot act on your behalf if you become disabled or incompetent. You would generally choose a nondurable power of attorney for a specific matter, such as handling your affairs in your physical absence. In estate planning, through which seniors plan for future incapacity, all powers of attorney are durable. This means the power of attorney is effective regardless of your health condition. A springing power of attorney becomes effective at a specific time in the future, perhaps in the event of an illness.

How do I decide who to choose?
It's crucial you choose someone you trust to act in your best interests, per your explicit instructions -- and it's not always the easiest job. Your agent will have the freedom to handle your assets as he or she sees fit, so you may want to consider a potential agent's financial knowledge or capacity for seeking and accepting outside help. Your agent will potentially spend a great deal of time acting on your behalf with no financial compensation for these efforts. Never allow anyone to force you to assign a durable power of attorney if you are not fully educated on the process and convinced you are choosing the most trustworthy, responsible person for the job.

How do I execute a durable POA?
A notary public or attorney must witness your signing the letter of attorney, and, in some states, you need two witnesses. You must be over 18 and fully competent, meaning you understand the implications of your decision. When filling out the form, you'll specify exactly which powers you are transferring to the agent. If the durable power of attorney specifies responsibilities regarding real estate, the letter of attorney should be recorded with the Registry of Deeds, which you'll find in the county courthouse where your property is located. Give the original copy to the agent if you'd like it to take immediate effect, and keep a copy for your own records. Alternatively, hold onto the original until you'd like it to take effect

How is "incapacity" determined?
It's important to identify a specific event, such as when your doctor certifies you are no longer able to handle your own affairs. In a legal document as important as this, you don't want to leave anything open to interpretation.