Our most recent article explored the value of having a Durable Power of Attorney. For many readers it raised the question, “Is a durable power of attorney the same as a power of attorney?” The short answer is, no. While both a power of attorney and a durable power of attorney appoint an agent on your behalf to carry out your wishes, they still serve largely different functions.
A standard power of attorney is limited to a specific set of actions or time. Once the designated functions are performed or the time period expires, the power of attorney is invalid. Powers of attorney can designate any number of responsibilities, from signing checks to running a business. For example, you are selling a home, but you can not be present at the closing. You may appoint a power of attorney to attend the closing and sign on your behalf. After the closing, the power of attorney ends and that person no longer has any authority on your behalf. A power of attorney becomes void in the event that you become incapacitated or pass away.
A durable power of attorney, on the other hand, is written specifically for the possibility that you may become incapacitated. Unlike a power of attorney, if you are unable to maintain the designated affairs on your own, a durable power of attorney becomes active and remains as such until you are again able to do so. Durable powers of attorney are limited to financial or healthcare matters, so the appointed agent is unable to make decisions on your behalf that are beyond that scope. For example, you are involved in an accident and placed in a medically induced coma. You have appointed your mother as your agent in a medical durable power of attorney and you spouse as your agent in a financial durable power of attorney. Your spouse is unable to make decisions regarding your health, while your mother is unable to make decisions about your finances. When you regain consciousness, if you are fully functional, neither your mother nor your spouse will be empowered to make financial or medical decisions on your behalf. A durable power of attorney also expires at your death and has no impact on your will.
It’s important to note that both a power of attorney and durable power of attorney can be modified after they are prepared, but they can only be created or changed when the principal is of sound mind. If a durable power of attorney is not in place when you or a loved one becomes incapacitated, every decision – from healthcare to Medicaid to living arrangements – becomes an exhausting challenge.
While we recommend that everyone have medical and financial powers of attorney, there are also a variety of situations that benefit from a power of attorney. If you need advice on which document best serves you purposes, the office of Scott M. Schweiger is here to help. We can explore the options and prepare a power of attorney that will suit your exact needs.