What is a Durable Power of Attorney?
None of us like to consider the possibility that a medical emergency would leave us incapacitated. Or that an illness like Alzheimer’s would result in our eventual mental incompetence.
Unfortunately, those things do sometimes happen, and it’s best to be prepared — for your own sake and for your loved ones’.
A durable power of attorney ensures that someone you choose will be able to manage your finances in the event of a medical emergency or a decline in mental capacity. A durable power of attorney also relieves your loved ones of having to figure out who you would want to be making decisions.
Power of attorney vs. durable power of attorney
Generally speaking, a power of attorney allows someone else to act on your behalf to make financial or legal decisions.
Someone might create a general power of attorney if they want another person to be able to take many different kinds of actions on their behalf. Or they might create a limited power of attorney if they only want them to be able to do one thing — say, sign a mortgage agreement.
But a traditional power of attorney will expire if the person who signed it (the principal) becomes mentally incompetent. That’s the benefit of a durable power of attorney. It includes language that allows it to continue even if the principal is in a medical emergency or loses capacity.
Your lawyer can draft a durable power of attorney so that it goes into effect immediately. Or they can draft it so that it only goes into effect if you become incapacitated.
Financial power of attorney
A durable power of attorney for finances does just what it sounds like — appoints an agent, or attorney-in-fact, to make financial decisions on your behalf.
These could include transactions like:
- Buying or selling property
- Managing bank and investment accounts
- Paying bills
- Filing tax returns
- Managing or applying for benefits like social security
See: What Are the Estate Documents You Need to Take Care of Loved Ones?
Who should you choose as your financial agent?
You can appoint anyone as your financial agent. You should make sure you trust them to make decisions in your best interest. And they should be savvy enough to handle whatever level of financial or legal decisions might come up.
They don’t have to be a professional in the finance industry, though. Your agent is permitted to consult with or hire professionals, such as accountants, lawyers, or financial advisors. Those services would be paid for out of your assets.
See: Preparing for the Role of Caregiver: Steps to Protect Your Family’s Future Needs
Advance directive for health care
So what about medical decisions? Who makes those if you become incapacitated?
In Georgia, an advance directive for health care appoints an agent to make medical decisions if you’re unable to do so. Your health care agent will oversee your medical care, working with doctors and other providers to ensure you’re getting the type of health care you want.
How do they know what health care measures you want?
An advance directive, sometimes called a living will, offers you the opportunity to write specific instructions to your health care agent and medical providers. For instance, if you would never want to be kept alive in a vegetative state, this is where you would put that information.
What types of decisions could your health care agent make?
- Whether to admit or discharge you from a nursing home or the hospital
- What treatments to give or not give
- Whether to keep you on life support or not
- What to do with your body after your death
See: Answering Difficult End of Life Questions
Who should you choose as your health care agent?
As you can see, your health care agent will have the authority to make life-or-death decisions if you become mentally incapacitated.
It’s probably obvious that you should choose someone you trust, but that’s not necessarily the only criteria. Handling difficult medical decisions for another person — especially if you love them — can be challenging. Be honest with yourself about the person you’re appointing.
You love your spouse, but would they be willing to take you off life support if that’s what your wishes are? Would your child? Or your best friend? Who would be best able to uphold your health care wishes during a painful time?
Don’t just appoint someone without talking to them about what you’re asking. Make sure they’re prepared to uphold your wishes if the need arises.
See: Don’t Make These Mistakes When You’re Naming Beneficiaries
What happens if you don’t have a durable power of attorney?
If you don’t have a durable power of attorney, and you become incapacitated, your family may not be able to get access to your accounts without having a court confirm that you’re incompetent. Court proceedings can be time-consuming, and decisions may need to be made before an agent has authority to make them.
Similarly, in the medical context, if you don’t have an advance directive for health care, there could be conflict about who has the authority to make the necessary decisions.
So it’s best to have a durable power of attorney in place as well as an advance directive for health care. It can protect you and your assets and keep your family and loved ones from additional stress during an already difficult time.
At Siedentopf Law, we work with clients to create full estate plans, including thorough end-of-life planning. Contact us for a confidential phone or zoom consultation.
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Whether you’re in the Atlanta and Brookhaven areas, or in Cobb, DeKalb , Fulton, Gwinnett, or another county in metro Atlanta, we can help you. We can also work with executors by phone or video conference if they are out of state or far away. Only after listening carefully will we present the options that are right for you and explore the benefits and costs of each one.