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Why You Need to Have a Durable Power of Attorney

Posted by Zach Dana on March 25, 2016



A power of attorney is a document that allows someone you trust to make decisions for you when you can’t. There are a few different types of power of attorney, and each serves a unique purpose. However, all will allow the person you have named (or an alternate, if the person you have named is unavailable or unwilling) to step in for you to make financial, legal or medical decisions when you can’t.

The Types

Limited. This type of power of attorney is usually signed for a very specific purpose and it usually ends after that purpose has been completed. You might sign a limited power of attorney if you need someone to step in for you to sign a deed to property you purchased if you know you are going to be out of town, for example.

General. This gives the person you name as your power of attorney all the powers and rights you have yourself. It isn’t necessarily used for times when you are incapacitated. You could use it if you simply wanted someone else to be able to sign documents for you, pay your bills or conduct financial transactions on your behalf. This type of power of attorney usually ends when you die or become incapacitated unless you end it before.

Durable. This may be the most common type of power of attorney that you hear about—especially in the world of estate planning. Unlike general power of attorney, this type of power of attorney remains in effect when you become incapacitated. If you don’t sign a durable power of attorney, if you become unable to make decisions for yourself, a court may have to appoint you a conservator or guardian. The durable power of attorney will stay in effect until you regain the ability to think for yourself or until you die.

Springing. This is similar to a durable power of attorney, except it doesn’t take effect until after you become incapacitated.

Most people don’t like the idea of giving up the power to make their own decisions, but the fact is that you never know when or if something will happen and you will be unable to make important financial or medical decisions. That’s why it’s so important to plan ahead. Signing a power of attorney ensures that YOU are in control of who makes decisions for you if you are unable to be present, physically or mentally. Without it, a judge may have to appoint someone to step in for you (depending on the circumstances) which can waste time and money.

What This Allows The Person I Name to Do

A durable power of attorney will allow someone else to step up to the plate and make legal, or financial decisions if you are incapacitated. This might include paying your bills and managing your investments.

If combined with a health care proxy, a durable power of attorney allows the person you name to get information from your doctors and direct your medical care if you get hurt or become sick. Medical power of attorney is often combined with a living will to make certain that your end of life wishes are clear, like whether or not you want to be kept on life support and for how long. In Arizona, you might hear these documents referred to as “advance care directives.”

What a Durable Power of Attorney Won’t Do

 These documents can be written so that the agent (the person who is given the power) cannot make any decisions unless a certain criteria is met, like if you were to become mentally disabled or if you were unable to get back into the country and needed to have someone pay your bills for you.

A power of attorney won’t allow the person you name to step in for you unless it is absolutely necessary. For example, if you become sick, a doctor must prove that you are unable to comprehend your condition, unable to make an informed choice about what you want to do, and unable to communicate your wishes before your power of attorney can step in.

Who Needs to Sign One?

Every adult should sign one. The truth is, you never know if or when you will be unable to make decisions for yourself. Giving someone power of attorney will ensure that you have some control over what decisions are made and who makes those decisions if you aren’t able to.

You may be under the impression that if you are married you don’t need to sign a power of attorney because your spouse will be able to make decisions for you. But this is not the case and another reason it is important to have a power of attorney. If your spouse is hurt in an accident or becomes incapacitated, you will only have power over assets that are in both of your names. So, for example, if your spouse became sick and you needed to sell stocks to pay for medical treatment, you wouldn’t be able to unless they were in your name.

Young adults should also sign a power of attorney—especially when they go off to college. In the eyes of the law, an 18-year-old (in some states a 19-year-old) is considered an adult and their parents no longer have the right to be kept in the loop about their health and medical records. If your child gets sick or is hospitalized, you might have to get a court order before you are able to talk with their doctor. If your child has signed a health care proxy and power of attorney, you won’t have to jump through these time wasting hoops and you will be able to make medical decisions on your child’s behalf if he or she is unable.

How to Obtain the Paperwork

A lawyer can help you prepare and sign the necessary power of attorney paper work. If you are looking for an attorney in Arizona to help you sign a power of attorney and help you with all of your other estate planning needs, call Dana Law Group. Our experienced attorneys take the time to understand your situation so they can guide you through the process of naming a power of attorney or starting an estate plan. Call us at 1-800-381-8132 or schedule a free consultation online.