Do I Need a Lawyer To Write a Durable Power of Attorney?

This article explains the different types of powers of attorney (POAs) and what powers of attorney can be used for.

Understanding Durable Powers of Attorney

There are different types of durable powers of attorney and different purposes for using each type. For example, you may want a durable power of attorney for healthcare, giving a conservator (often a friend or family member) legal authority to make healthcare decisions.

Types of Durable Powers of Attorney

• Durable Power 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.

• Non-Durable Power of Attorney

  • 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.

• Springing Power of Attorney

  • A springing power of attorney allows you to 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.

• General Power of Attorney

  • 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 any of the following:

    • Financial matters

    • Medical treatment decisions,

    • Real estate transactions,

    • Banking transactions (including managing bank accounts)

  • A family may use a general POA to ensure the care of an elder with dementia. They can use the POA in place of a guardianship or conservatorship.

While you can certainly draft any of these documents on your own, it is no substitute for the legal experience an estate lawyer brings to your case.

Durable Power of Attorney for Finances

A financial power of attorney is a legal document that grants your chosen representative legal authority to manage your financial affairs. 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 has to deal with real estate assets, some states require you to file the document with the local land records office. If they will be handling financial transactions, you may file a copy of the document with your financial institution.

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

Durable Power of Attorney for Healthcare

A healthcare power of attorney designates the person who will make medical decisions for you in an emergency, such as whether to keep you on life support. Even though you can identify 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 (medical POA) 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 ex-spouse was an agent in the power of attorney.

Can I Revoke the Durable Power of Attorney?

Situations change and you may find that you 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.

Get Legal Help

You do not have to draft legal documents on your own. An estate planning lawyer is an estate law expert who can give you sound legal advice. They have significant experience drafting powers of attorney and will help you draft a sound power of attorney to meet your needs. Speak to an estate planning attorney near you today.

Please note FindLaw’s Legal Forms & Services section can help you draft a financial power of attorney and a health care directive & living will.