A durable power of attorney ensures a person’s affairs are taken care of by someone they trust if they become mentally incapacitated and avoid a costly guardianship proceeding. A durable power of attorney is a legal document that allows a person to authorize another to manage their financial affairs. The person who grants the authority is known as the principal, while the one who has been granted the authority to act on behalf of the principal is known as the agent.
Why Have a DPOA?
Unlike a general power of attorney, the durable power of attorney remains effective even if the person becomes disabled, incapacitated, or mentally incompetent. Without a durable power of attorney, the court appoints a guardian or conservator to decide for a person if they become unable to act and make decisions on their behalf.
With a DPOA, an agent that the principal trusts can step in on their behalf without the need for a long and costly court proceeding.
When a DPOA Takes Effect
When a principal signs a durable power of attorney, they authorize the agent to engage in particular legal, financial, and business transactions on their behalf. The DPOA takes effect immediately unless the principal provides that it becomes effective at a particular date or after a certain condition is satisfied, for example, if the doctor declares that the person is incapacitated.
Termination of the DPOA
A principal can revoke their DPOA whenever they want to by informing the agent in writing and notifying agencies or institutions. Also, these can be recorded with the County Recorder's office.
It is wise for the principal to get the old document back from the agent. If that is not possible, then the principal can send a certified letter to the agent stating the revocation of the power of attorney and also show recording of the revocation.
A DPOA can also end if:
- The principal dies
- The agent becomes incapacitated or dies, and no other agent has been listed
- The principal gets a divorce and their spouse was named as the agent
A former spouse is revoked automatically from being the agent upon annulment or divorce. If the principle named a successor agent, that individual will become the principal's agent.
A DPOA is an invaluable estate planning tool but is not a substitute for other important documents, such as a will or trust. It is best to incorporate it into one’s overall estate plan after getting proper legal advice from an estate planning attorney.