As one begins to advance in age and prepare for life as a senior, there are certain things that need to be put in place. One such thing is a durable power of attorney. But you might be thinking, why do I need one? Why should I consider handing over to someone the legal power to sign documents on my behalf? Here’s why!
Life can take unexpected turns and it is often better to be prepared for such unforeseen circumstances than be sorry in the end. This article highlights what a durable power of attorney is, its importance and when to use it.
What’s included in a durable power of attorney:
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- Details of executor
- Details of agent
- Purpose
- Date of execution
- Details of property
- Notarized
What is Durable Power of Attorney?
Unlike other poa forms such as medical and general poas, durable power of attorney is one document individuals should have in place in the event that they become unable to take care of themselves at any point in their lives.
The durable power of attorney form gives another permission under the law to handle financially-related matters on the other’s behalf. It is typically used by seniors or individuals at risks of mental or physical incapacitation to protect their interests when they are unable to do so.
The one who hands over his/her legal rights to make certain decisions is called the ‘principal’ while the one he/she nominates is described as the ‘agent’, ‘proxy, or ‘attorney-in-fact’. It is recommended that this agent is a spouse, friend or relative of the principal to reduce the risk of exploitation. The agent should be somebody the principal trusts has his/her best interest at heart, preferably, someone in his/her will.
Durable POA vs General POA
There are several types of power of attorney. However, in legal practice, the two main types of power of attorney are the durable power of attorney (dpoa) and general power of attorney (gpoa).
The difference between both types generally depends on how much power the principal is willing to grant the agent. They can also be distinguished based on three subheadings – date of effectiveness, function and termination.
When it becomes effective:
A general power of attorney becomes effective immediately upon the signing of the principal and agent according to the provisions of the law, or in some cases, at a later date as specified on the gpoa form. Though there are certain cases where a durable power of attorney becomes effective immediately, more often than not, it becomes effective upon incapacitation of the principal.
Function:
A general power of attorney gives another individual the legal permission to act on the principal’s behalf in nearly all situations including business engagements, estate properties and health. On the other hand, a durable power of attorney may be general or limited to specific issues, say finances. They are usually more specific in nature.
Termination:
The general power of attorney terminates from when the guarantor becomes incapacitated mentally or physically. The principal also has the rights to put an end to his/her agent’s power of attorney at any time deemed fit. Durable power of attorney however extends beyond the period the principal is incapacitated. An individual with a durable power of attorney is allowed to act on behalf of the principal after he/she becomes incapacitant.
Though ‘durable’, a durable power of attorney can become invalid in some situations. One such is when the agent is the principal’s spouse and both parties become divorced.
Certain states and countries consider all power of attorney durable except stated otherwise in the power of attorney form.
When And How to Use A Durable Power of Attorney Form
It is necessary to use a durable power of attorney form when the principal:
- Works in a hazardous work-environment
- Has a business or property that needs to be managed when he/she is out of town
- Wants to enforce certain rules in his/her businesses when he/she no longer has the mental or physical capacity to enforce them.
- Is fast approaching old age and needs someone to make decisions in his/her name.
- Travels often
- Has been diagnosed with a serious illness.
It is possible to download a durable power of attorney online form template online and fill for personal use.
Having downloaded the blank durable power of attorney form, here’s what you should do.
- Select the financial powers: In this field, it is expected that the principals fill in who to be granted the legal or financial powers when they lose consciousness. We recommend picking your next of kin or someone on your will.
- Tick the effective immediately or upon disability boxes: The principal is then required to tick a box to reflect whether or not the durable power of attorney becomes upon signing or after his/her incapacitation.
- Thereafter, the principal should head over to read the signing requirements of the state and sign accordingly.
- Store the form.
Why Is A Durable Power of Attorney Form Important?
A durable power of attorney form spares individuals complications that could arise should they become incapacitated or too old to take care of their own affairs, complications in the sense that if there is no power of attorney, the family of the principal would have to go through different court proceedings for the court to nominate someone in the capacity of an agent.
Getting a durable power of attorney these days is quite easy. There are lots of free durable power of attorney forms available for download online, one can get for his/her personal use.
Here are some of the reasons why one should consider getting a general durable power of attorney forms:
Gives you power ahead of a court to decide who makes decisions for you:
Without a power of attorney in place, a conservatorship will need to be established if and when the principal become incapacitated. On the other hand, filling a free durable power of attorney pdf or form gives you the authority to choose who represents you during this period.
Prevents confusion over the intent of the principal:
Without a filled, signed and notarized power of attorney, there is a tendency for family members to battle themselves on what they consider the principal’s wish. However, once written down, a durable power of attorney states the principal’s wishes in clear, concise terms.
Affords everyone peace of mind:
It gives family members peace of mind in the event that the principal no longer has the physical or mental strength to take certain actions. Rather than make way to court to acquire permission for basic tasks like arranging home services, an attorney can represent the principal in authorizing these tasks.
Frequently Asked Questions (FAQ)
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When does the power of attorney begin or end?
The legal permission to act on behalf of the principal takes effect from the day the form becomes legally executed. In some cases, the power of attorney doesn’t become effective till a particular date or till the principal become incompetent. In this case, it is referred to as a springing power of attorney.
The durable power of attorney remains valid after the date specified in the document or before when the principal chooses to revoke it. If not explicitly stated when the rights should be revoked, the dpoa remains valid till the principal’s death.
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Can I fire my agent?
Yes, you can. Principals are allowed to dismiss their agents at any point in time they feel the agent is doing them a disservice or whenever they feel they no longer require the agent’s service. But before doing so, it is recommended the principal serves the agent a notice of revocation. The principal is also required to inform all organizations that have become acquainted with their general durable power of attorney of their intentions of dismissing their agent.
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Do I still have a say in my affairs?
Yes, you do, so far you are still mentally capable of handling your issues. If principals are still mentally capable, they have the rights and ability to set a particular date from which the dpoa becomes effective and revoke this power when they deem fit.
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Can I use a durable power of attorney pdf or form?
Yes, you can. There are many durable power of attorney forms online one can use. However, they should be used in accordance with the advice of an attorney. This is because the attorney has a more in-depth understanding of the form’s content, its use and limitations.
If drafted and filled properly, a durable power of attorney is the cheapest form of insurance anyone can get. If you do not know how to draft one, do not fret. Cocosign has numerous power of attorney form templates you can use. This includes general forms and more specific ones, durable and non-durable templates.