If you are worried about what will happen to your assets and affairs should you become incapacitated, setting up an enduring power of attorney may ease your fears. An enduring power of attorney – referred to as a “durable” power of attorney in the United States – is a document granting another individual the right to handle certain financial or medical decisions on your behalf. A durable power of attorney differs from a standard power of attorney in that your representation, known as your “agent” or "attorney-in-fact" does not lose his right to manage your affairs should you become mentally incompetent. While an attorney can provide you with helpful information when completing this process, an attorney is not necessary to set up and execute a durable power of attorney. You can complete the documentation on your own, or use an online document preparation website.
Discuss with your would-be agent the fact that you would like to give him durable power-of-attorney. Handling another individual's property, finances and/or medical decisions is a significant responsibility. Explain to your would-be agent what may be required of him and ensure that he is aware of, and accepts, the responsibility before naming him as your representative.
Obtain the forms necessary for awarding enduring power of attorney in your state. You can order these forms from a document preparation service or have your attorney draft them for you.
Fill out the durable power of attorney form/forms. Name your agent and any alternate individuals to handle your affairs in the event that your current agent cannot do so. You cannot use one document as both a financial and medical power of attorney; you must execute two separate power-of-attorney documents -- one financial and one medical -- if you want an agent/agents to handle your financial transactions and carry out your health care decisions. You can also place limitations on your agent in either case if you so choose.
Specify a time frame for the document. Durable power of attorney privileges generally go into effect immediately, but you can prevent this from occurring by setting a specific date that you want the document/documents to take effect. You can also specify a termination date if you wish.
Make a checklist of rights, responsibilities and limitations your durable power of attorney should reflect. Review the document carefully to ensure that you included all of the necessary information. If you have an attorney, ask your attorney to review the power of attorney for any vague terms or stipulations that could cause confusion in the future.
Make a copy of the unsigned document. Give the copy to your agent to review. Answer any questions he has about the terms, responsibilities and limitations it contains.
Visit a notary public with your agent. Bring both copies of the unsigned and un-notarized durable power of attorney form. Sign both durable power-of-attorney forms in front of the notary public and ensure that your agent does the same. Have both documents notarized.
Put your copy of the original durable power of attorney document in a safe place. Give the second original copy to your agent. Your agent will need the original document to prove his status as your representation when making future decisions regarding your property, finances and/or health care.
- Durable power of attorney forms
- Notary public
Tips & Warnings
You can revoke your agent's status as your representative at any time provided you are of sound mind. Some states, such as Illinois, give you the right to revoke a durable power of attorney even if you have been declared mentally incompetent.
A durable power of attorney has the same goal regardless of where you live, but the specific requirements for completing the form and setting up the arrangement vary slightly depending on your state of residence. Always follow your state's specific guidelines when awarding another individual power of attorney over your assets.
You can modify your durable power of attorney at any time.
Because a financial durable power of attorney gives a third party access to your assets, your agent has the ability to steal money and mismanage funds. Thus, it is imperative that you only award durable power of attorney privileges to an individual you trust who is capable of properly managing your affairs in your stead.
References & Resources
- Greene County Pennsylvania: Power of Attorney – What is a Durable Power of Attorney?
- Family Caregiver Alliance: Durable Power of Attorney and Revocable Living Trusts
- Southern Illinois University School of Law: Durable Power of Attorney
- Holmes Law Offices P.C.: Durable Power of Attorney
- U.S. Department of State: Caring for Elderly Parents
- National Caregivers' Library: Power of Attorney – The Pros and Cons
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