Do I Need a Lawyer To Write a Durable Power of Attorney?
Do you need to hire a lawyer to write a durable power of attorney? Not necessarily.
Do you need a lawyer to write a durable power of attorney? Not necessarily.
Creating a legal document can be daunting, particularly when it involves life and death. Many people turn to estate planning lawyers for help with estate planning documents.
An experienced local estate planning attorney has handled hundreds of these documents. They've seen many situations where a power of attorney is of use. They can offer practical legal advice.
Can I DIY My Durable Power of Attorney?
Sometimes it's more important to have a document in place than to have it perfect. And some people feel very comfortable making their own decisions about what to include in their legal documents.
FindLaw's Legal Forms & Services section can help you draft a Financial Power of Attorney and a Health Care Directive & Living Will. The service is affordable, and the product will meet your state's laws.
Why Would I Create a Durable Power of Attorney?
Drafting a durable power of attorney is an act of love. Your family members and loved ones will be well-positioned to act on your behalf.
A durable power of attorney gives someone legal authority to make decisions on your behalf. These decisions can include the following:
- Decisions relating to your health
- Decisions relating to your financial affairs
When you execute a durable power of attorney, you make provisions for your finances in the event of an emergency or incapacity. You spare your family and others considerable stress.
If you suffered a serious injury leaving you in a coma, a financial power of attorney would allow someone to handle your financial affairs. A health care power of attorney would allow a loved one to make crucial health care decisions, such as life support.
Types of Powers of Attorney
A durable power of attorney can be flexible. But it may be purpose limited. For example, it may be limited to allowing the person holding a power of attorney to make financial or medical decisions.
A nondurable power of attorney is limited to a specific time and purpose. For example, you could give someone limited power of attorney to sign a legal document for you. This might be useful in a real estate transaction in another state. Once that task is complete, the power of attorney ends.
Using POAs for Trips Out of the Country
Suppose you take an extended trip abroad. In your absence, you could draw up a nondurable financial power of attorney to allow someone to make financial decisions for your small business.
You could provide your agent access to your bank accounts and the ability to make all other financial decisions on your behalf. A power of attorney could be in force for a specific time.
Using POAs for Life Events
You can also design your durable power of attorney to "spring into action" only when meeting specific criteria. For example, a springing power of attorney may only be operational if you are declared incapacitated or incompetent.
When General POAs Are Useful
A general power of attorney gives the agent broad powers to make critical decisions. Those decisions could be:
- Financial matters
- Daily care decisions
- Medical treatment decisions
- Real estate transactions
- Decisions about where the person will live
- Any other important decision
A general POA is an essential tool in the elder law context. Elder law attorneys routinely advise families to use a general POA to ensure the care of a senior adult.
A senior needs to execute a general POA before dementia or other ailment renders them unable to make legally sound decisions. A general POA could allow loved ones to handle their affairs. A POA could be used to make decisions for the senior adult in place of guardianship or conservatorship. Getting a conservator appointed is a more costly and time-intensive procedure. It requires filing legal documents in probate court and often requires a hearing.
Power of Attorney for Finances
A financial power of attorney is a legal document that grants your chosen representative legal authority. This person's official title depends on the state where you live. The individual often is referred to as your agent or as an attorney-in-fact.
The financial power of attorney provides the agent authority to act on your behalf in financial matters. The agent has a fiduciary duty to act in your best interest.
Most states have a simple power of attorney form. This form helps you create an official financial power of attorney document. Before it becomes legally binding, a notary public must review it. The notary public must:
Some states have additional requirements if your agent engages in real estate transactions. If agents deal with real estate assets, some states require you to put the document on file in the local land records office.
Filing a copy of the document with your financial institution is a good idea when your agent will regularly handle financial transactions.
A durable financial POA typically ends upon the following:
- Divorce (if the agent was an ex-spouse)
A durable financial POA can be a valuable tool in many circumstances.
Power of Attorney for Health Care
A medical POA designates the person who will make medical decisions for you in an emergency. You may have already set out your wishes in a living will (an advance health care directive). But no document can cover every situation. Giving a loved one or a close friend the authority to make decisions is sometimes essential.
To create a legally valid medical power of attorney, you must be an adult of sound mind. This document takes effect when your doctor declares you lack the “capacity" to make your own health care decisions.
The power of attorney for health care is generally only extinguished upon the following:
- Your death
- Revocation by you or a court
- Upon divorce (when an ex-spouse has power of attorney)
A power of attorney for health care supplements advance health care directives. Although, you can have one without the other.
Can a Power of Attorney Be Revoked?
Situations change. You may now want to revoke the authority previously given. Revoking a power of attorney can be done in several ways. You can:
- Replace your existing durable POA with a new POA
- Write a written revocation letter that explains that you are revoking the authority you had previously given your agent
- Destroy the original power of attorney document
- Perform all three options
You may need to revoke a power of attorney for various reasons.
Contact an Estate Planning Attorney
If you still have questions regarding a durable power of attorney or any other estate planning matter, an attorney can help. You can contact a local estate planning attorney for assistance. If you prefer to explore the DIY forms process, FindLaw can help.
Can I Solve This on My Own or Do I Need an Attorney?
- DIY is possible in some simple cases
- Cases with complex finances are rarely cut and dry
- Attorneys offer tailored advice and answer your legal questions
- Many attorneys offer free consultations