Durable Power Of Attorney
A Power of Attorney (POA), sometimes called as a Letter of Attorney, is a written document which authorizes an agent or an Attorney to carry out specific actions on behalf of the Principal, also called Grantor, who is the person who creates the POA. Essentially, a POA transfers authority to an agent to carry out legal/financial transactions or similar acts on behalf of a Principal who is indisposed to do the same himself.
A Durable POA is an authorization document created by the Principal/Grantor to authorize the agent with powers which will last even after the Grantor passes away or becomes mentally incompetent.
We recommend our readers to go through a detailed guide about Power of Attorney documents to enhance your knowledge about them.
Who Should Make A Durable POA?
Durable POAs are ideal for the elderly who stand a chance to become senile or mentally incapacitated due to illness or old age. Even after their passing, the powers will remain with the agent to carry out legal or financial transactions on the Grantor’s behalf or make decisions regarding the deceased Grantor’s wealth.
The only significant difference between a conventional POA and its durable counterpart is that the power remains even after the Grantor is no more, while in the former, the POA becomes invalid the moment the Principal dies.
As stated before, durable POAs are ideal for the elderly or anyone expecting a deteriorating illness. Ideally, anyone wishing to create a durable POA must create one before an illness sets in or in general, before becoming incapacitated. The following categories of people who are strongly recommended to prepare a Durable POA –
- People who stand a chance of becoming affected by a genetically inherited disease like Alzheimer’s or dementia
- People above the age of 80 and already exhibiting symptoms of becoming senile
- Elderly or middle aged people who are about to undergo a major surgery
- Any others who are foreseeing a chance of become incompetent to handle their own affairs
In case such a POA is not created, next of kin may not have the power to take important major decisions. Said next of kin will have to proceed via court in case they wish to handle such matters.
When Does The Durable POA Come Into Power?
The transfer of power using a Durable POA can either happen immediately or conditionally. This depends entirely on what the document says. Should the Grantor wish to transfer powers immediately, it can be stated in the POA or if the power transfer should happen only post the Grantor becoming incapable, the POA can be drafted accordingly.
A Durable POA ensures that the appointed agent retains bestowed powers even after the Grantor becomes incapacitated or dies. This is a serious power and so naturally, considerable thought should be given to who is to be appointed as your Attorney.
Things To Keep In Mind While Creating A Durable POA
Creating a POA, let alone a Durable POA, is a thought that most people balk at. Especially when it is under the compulsion of friends or family. Especially in the elderly, it can create a feeling of losing independence and then there is also the fear of what may come when they become incapacitated. Most people worry that the appointed agent may change colors and go against the wishes of the Principal. So if you have a friend or a family member who is facing a similar situation, we urge you to practice empathy.
If you wish to create one for yourself, we cannot stress enough on the importance of appointing the right Attorney. Avoid nominating a person older than yourself or someone who does not have your best interests in mind.
Frequently Asked Questions
1. I have a history of Alzheimer’s in my family and I am in my sixties currently. Should I create a Durable POA?
Yes. It is strongly recommended, especially since early onset Alzheimer’s begins in the sixties. Think about whom you want to appoint as your Attorney and what powers you would like to bestow. If you have already made up your mind to create one, use our ready-to-use online Power of Attorney template to get started immediately.
2. My Father-In-Law is exhibiting symptoms of becoming senile and is deteriorating with every passing day. He has not made a Will or a Power of Attorney yet. What should be done?
If there is someone your Father-In-Law trusts, get that person to talk to him about the problems that could arise if he dies intestate. He might not be aware of the consequences which could be why he never gave much thought to creating a Will or a POA. Advice him to get both made at the earliest. We also have a ready-made template for last Will and Testament. He could create that from home with minimal external help. We recommend that you use it.
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