Power of Attorney vs. Durable Power of Attorney – Financial Decisions
Power of Attorney vs. Durable Power of Attorney is one of the most important aspects very important to understand when you are considering creating the document authorizing someone to act on your behalf. Durable Power of Attorney was established for the specific purpose of allowing you to name an individual to act for you when you become incapacitated.
The Durable Power of Attorney gives the power to the individual whom you have specified to act for you only when you become incompetent. The Durable Power of Attorney has to remain its authority when you become incapacitated.
In contrast, the more commonly known and used “power of attorney” gives the named individual the right to act on another’s behalf only while the individual is competent. Many people think that if they extend their power of attorney to someone they trust the assignment will apply when they become incompetent. This assumption is not so. When a person becomes incompetent, the power of attorney given by that individual ceases. To establish a “durable” power of attorney, the document needs to state explicitly that it is to continue to be effective in the event of the principle’s disability.
The Durable Power of Attorney is different in each state. As you move from state to state, your Durable Power of Attorney is one of the documents that you should have reviewed by a local estate planning attorney to make sure it complies with that particular state’s legal requirements.
Power of Attorney vs. Durable Power of Attorney – Medical Decisions
The Durable Power of Attorney may consist of two separate legal documents.
- Durable Power of Attorney for Health Care
- Durable General Power of Attorney
Durable Power of Attorney for Health Care:
The primary purpose of the Durable Power of Attorney for Health Care is to appoint someone to make health care decisions for you in the event you are unable to make them for yourself. The Durable Power of Attorney for Health Care applies in all situations in which you are unable to make health care decisions for yourself, not just when you are terminally ill. The Durable Power of Attorney for Health Care you create only becomes effective upon your incapacity. It gives broad powers of health care decisions to whomever you have named as your Durable Power of Attorney for Health Care.
Why is a Durable Power of Attorney for Health Care important:
No one has the legal authority to act for a family member if that individual is unconscious or incompetent unless they have a Power of Attorney to do so. Even parents of children older than 18 cannot authorize emergency treatment for them without a Power of Attorney. If no one has been appointed as your Attorney-in-Fact, it is up to the courts to make decisions on your behalf.
Durable General Power of Attorney
The Durable General Power of Attorney also called the Financial Power of Attorney is the second Durable Power of Attorney and identifies whom you want to assume your Durable Power of Attorney for matters other than health care decisions if you should become incompetent. If you become incapacitated, this document gives another person full legal authority to sign your name on your behalf and manage your finances for all assets not owned by your Revocable Living Trust.