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.

The process of creating a legal document can be a daunting task, particularly when it involves matters of life and death. That's why many people turn to estate planning lawyers for help.

An experienced local estate planning attorney has handled hundreds of these documents and seen a wide range of situations where a power of attorney was needed. They can offer practical legal advice.

Can I DIY My Durable Power of Attorney?

On the other hand, there are times when 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. By giving someone legal authority to make important decisions for you regarding your health and finances in the event of an emergency, you spare your family, and yourself, considerable stress.

If you suffered a serious injury leaving you in a coma, for example, a financial power of attorney would allow someone to handle your financial affairs. A healthcare 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 is not time-limited, although it may be purpose limited. For example, it may be limited to allowing the person holding the power of attorney to make financial decisions or medical decisions.

A non-durable power of attorney is limited to a specific time and purpose. For example, you could give someone limited power of attorney in order to sign a legal document for you 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

For example, you could draw up a non-durable financial power of attorney to allow someone to make financial decisions for your small business while you are out of the country. The power of attorney could be in force for a specific amount of time.

Using POAs for Life Events

You can also design your durable power of attorney to “spring into action" only when certain criteria are met. 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 authority broad powers to make any important decisions that need to be made. Those decisions could be financial matters, daily care decisions, medical treatment decisions, real estate transactions, and decisions about where the person will live, etc.

A general POA may be used by a family to ensure the care of a senior adult with dementia for whom many decisions need to be made. It can be used in place of guardianship or conservatorship.

Power of Attorney for Finances

financial power of attorney is a legal document that grants your chosen representative legal authority to act on your behalf on financial matters. This person's official title depends on the state where you live but is often referred to as your agent or as an attorney-in-fact. The person has a fiduciary duty to act in your best interest.

Most states have a simple power of attorney form to help you create an official financial power of attorney document. Before it becomes a legally binding document, it must be signed, witnessed, and notarized by a notary public.

If your agent will have to deal with real estate assets, some states require you to put the document on file in the local land records office. If they will be handling financial transactions, you may file a copy of the document with your financial institution.

durable financial POA typically ends upon death, revocation, or in some states divorce (if the agent was an ex-spouse).

Power of Attorney for Health Care

A medical POA designates the person who will make medical decisions for you in an emergency. Even though you set out your wishes in a living will (also called an advance healthcare directive), no document can cover every situation. It's still important to give a loved one or a level-headed close friend the authority to make decisions not covered by your healthcare directive.

In order 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 that you lack the "capacity" to make your own health care decisions. The power of attorney for healthcare is generally only extinguished upon your death, revocation by you or a court, or upon divorce if the power of attorney was granted to the ex-spouse.

Can a Power of Attorney Be Revoked?

Situations change and you may find that you now want to revoke the authority you gave to someone to make decisions for you. Revoking a power of attorney can be done in several ways. You can:

  • Replace your existing durable POA with a new POA
  • You can write a written revocation letter that explains that you are revoking the authority you had previously given your agent
  • You can destroy the original power of attorney document
  • You can be thorough and do all three

Speak with an estate planning attorney if you still have questions, or check out the DIY forms process to see if it is the right solution for you.