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What Is a Durable Power of Attorney? (Part II)

By Daniel Taylor, Esq. | Last updated on

You know what a durable power of attorney is, and the potential advantages of having one if you're ever incapacitated. (If not, check out Part I of our two-part series.)

So now that you're familiar with some of the basics, what else do you need to know?

Today we cover the whens and hows: When a durable power attorney starts, when it stops, and how to best go about getting one drafted.

When Does a Durable Power of Attorney Go Into Effect?

Although durable powers of attorney are typically used to make decisions in the event of a person becoming incapacitated, they are generally effective from the moment they are signed. To make a durable power of attorney effective only upon the incapacity of the person granting it, it generally must be created as "springing" durable power of attorney.

However, some states have specific rules for when durable powers of attorney go into effect. For example, in California, the holder of a durable power of attorney for healthcare has no authority while the person who granted the power can still give informed consent to a health care decision.

When Does the Durable Power of Attorney End or Fail?

A durable power of attorney ends automatically upon your death. It can also end in the event of divorce (if your former spouse was granted the durable power of attorney), by court order, or by revocation.

In some healthcare situations, a doctor or a medical provider can refuse to follow the directions of the named healthcare agent in a durable power of attorney or the wishes set out in an advanced directive. This may happen in situations involving:

  • Decisions that go against the conscience of the doctor or individual medical services provider;
  • Decisions that go against the policies of the hospital or other medical institution; and
  • Decisions that would result in ineffective health care, or asks health care providers to adopt health care standards that violate those of the provider, hospital or other medical institution.

However, in the event that a doctor or medical provider wishes to deny the direction of the agent named in your durable power of attorney for healthcare, they must allow your agent to transfer you to another doctor or medical provider who will honor your wishes.

How Do You Draft a Durable Power of Attorney?

Drafting a durable power of attorney begins by looking up your state's laws to know what is required for a valid document. You can also find samples online to get a better idea of what a power of attorney document can cover, including any issues you may not have thought about.

Because most durable powers of attorney are created for a specific purpose, it may be best to consult an experienced estate planning lawyer to ensure your durable power of attorney is effective and that, in the event of an unexpected emergency, your health and financial decisions will be made by someone you trust.

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