A durable power of attorney gives another person the right to act on your behalf if you should become unable to act for yourself. Durable powers of attorney stay in effect until you cancel or revoke them or until you die. A non-durable power of attorney automatically expires if you are incapacitated. You are recognized as the principal, and the person you appoint is the attorney-in-fact or your agent, but your agent does not have to be an attorney. You will likely need two separate documents: One to handle health care issues and another to handle your financial matters.
A durable power of attorney remains valid if you become unable to act for yourself due to mental or physical limitations. A non-durable power of attorney automatically expires under these circumstances.
Instructions can be included in your durable power of attorney about how it can be revoked or modified. Your agent must be notified if you revoke or modify the authority granted to them. In some circumstances, you may want to notify others that you have revoked or modified your durable power of attorney. An example of this condition would be a medical facility that is aware of your power of attorney, but you no longer want the agent to act on your behalf at this facility.
Two types of durable powers of attorney are commonly used:
A medical power of attorney sets out your wishes for health care if when you are too ill or injured to speak for yourself. This can include your wishes about not being resuscitated or put on life support. However, the durable power of attorney does not override a living will. Your agent for the medical power of attorney should be someone you trust and who knows your wishes. Your agent is legally bound to ensure your treatment wishes are followed as they understand them.
A financial power of attorney gives someone the authority to handle financial transactions and make financial decisions on your behalf. Financial powers of attorney give your agent authority to manage all of your financial affairs if you become incapacitated by any cause.
A durable power of attorney for financial matters can be designed to give a trusted person as much authority over your financial matters as you believe necessary. Ideally, you want to give your agent the authority necessary to protect your financial welfare and your investment accounts. They should also be able to work with your bank. Paying your bills is another task they can perform for you.
You could cover finances and health care in one document, but it isn’t a good plan. Separate documents will be easier for you and your agent. The separate documents provide a greater level of privacy since you may not want a medical facility to know about your finances. Likewise, you may not want your financial companies to know about your medical matters.
It may be feasible to have the same agent for powers of attorney. If you wish to appoint different agents, then you should be sure they can work well together.
Disclaimer: This article is intended to provide a general summary of laws in the State of and should not be construed as a legal opinion nor a complete legal analysis of the subject matter. Noelle Minto is an attorney at NM Law, APC in Tustin, California, a law firm specializing in Trusts & Estates and Business Transactions.