Durable Powers of Attorney for Finances FAQ

by Nolo.com
From the Nolo.com Wills & Estates Planning Center

Learn about the simple way to arrange for someone to make your financial decisions should you become unable to do so yourself.

What's Below:

How does a durable power of attorney work?
When does a durable power of attorney take effect?
How do I create a durable power of attorney for finances?
What happens if I don't have a durable power of attorney for finances?
I have a living trust. Do I still need a durable power of attorney for finances?
Can my attorney-in-fact make medical decisions on my behalf?
When does a durable power of attorney end?
What does an attorney-in-fact do?

A durable power of attorney for finances is a simple, inexpensive and reliable way to arrange for someone to make your financial decisions should you become unable to do so yourself. It's also a wonderful thing to do for your family members. If you do become incapacitated, the durable power of attorney will likely appear as a minor miracle to those close to you.

How does a durable power of attorney work?

When you create and sign a power of attorney, you give another person legal authority to act on your behalf. This person is called your "attorney-in-fact" or, sometimes, your "agent." The word "attorney" here means anyone authorized to act on another's behalf; it's most definitely not restricted to lawyers.

A "durable" power of attorney stays valid even if you become unable to handle your own affairs (incapacitated). If you don't specify that you want your power of attorney to be durable, it will automatically end if you later become incapacitated.

When does a durable power of attorney take effect?

A durable power of attorney can be drafted so that it goes into effect as soon as you sign it. But, you can also specify that the durable power of attorney does not go into effect unless a doctor certifies that you have become incapacitated. This is called a "springing" durable power of attorney. It allows you to keep control over your affairs unless and until you become incapacitated, when it springs into effect.

What does an attorney-in-fact do?

Commonly, people give an attorney-in-fact broad power over their finances. But you can give your attorney-in-fact as much or as little power as you wish. You may want to give your attorney-in-fact authority to do some or all of the following:

use your assets to pay your everyday expenses and those of your family
buy, sell, maintain, pay taxes on and mortgage real estate and other property
collect benefits from Social Security, Medicare or other government programs or civil or military service
invest your money in stocks, bonds and mutual funds
handle transactions with banks and other financial institutions
buy and sell insurance policies and annuities for you
file and pay your taxes
operate your small business
claim property you inherit or are otherwise entitled to
hire someone to represent you in court, and
manage your retirement accounts.

Whatever powers you give the attorney-in-fact, the attorney-in-fact must act in your best interests, keep accurate records, keep your property separate from his or hers and avoid conflicts of interest.

How do I create a durable power of attorney for finances?

To create a legally valid durable power of attorney, all you need to do is properly complete and sign a fill-in-the-blanks form that's a few pages long. Some states have their own forms, but none of them are mandatory.

After you fill out the form, you must sign it in front of a notary public. In some states, witnesses must watch you sign the document. If your attorney-in-fact will have authority to deal with your real estate, you also need to put a copy on file at the local land records office. (In just two states, North and South Carolina, you must record your power of attorney for it to be durable.)

Some banks and brokerage companies have their own durable power of attorney forms. If you want your attorney-in-fact to have an easy time with these institutions, you may need to prepare two (or more) durable powers of attorney: your own form and forms provided by the institutions with which you do business.

What happens if I don't have a durable power of attorney for finances?

If you become incapacitated and you haven't prepared a durable power of attorney for finances, a court proceeding is probably inescapable. Your spouse, closest relatives or companion will have to ask a court for authority over at least some of your financial affairs.

If you are married, your spouse does have some authority over property you own together -- to pay bills from a joint bank account, for example. There are significant limits, however, on your spouse's right to sell property owned by both of you.

If your relatives go to court to get someone appointed to manage your financial affairs, they must ask a judge to rule that you cannot take care of your own affairs -- a public airing of a very private matter. And like any court proceeding, it can be expensive if a lawyer must be hired. Depending on where you live, the person appointed is called a conservator, guardian of the estate, committee or curator. When this person is appointed, you lose the right to control your own money and property.

The appointment of a conservator is usually just the beginning of court proceedings. Often the conservator must:

post a bond -- a kind of insurance policy that pays if the conservator steals or misuses property
prepare (or hire a lawyer or accountant to prepare) detailed financial reports and periodically file them with the court, and
get court approval for certain transactions, such as selling real estate or making slightly risky investments.

A conservatorship isn't necessarily permanent, but it may be ended only by the court.

I have a living trust. Do I still need a durable power of attorney for finances?

A revocable living trust can be useful if you become incapable of taking care of your financial affairs. That's because the person who will distribute trust property after your death (the successor trustee) can also, in most cases, take over management of the trust property if you become incapacitated.

Few people, however, transfer all their property to a living trust, and the successor trustee has no authority over property that the trust doesn't own. So a living trust isn't a complete substitute for a durable power of attorney for finances.

Can my attorney-in-fact make medical decisions on my behalf?

No. A durable power of attorney for finances does not give your attorney-in-fact legal authority to make medical decisions for you.

You can, however, prepare a durable power of attorney for healthcare, a document that lets you choose someone to make medical decisions on your behalf if you can't.

In most states, you'll also want to write out your wishes in a "living will" (also called a Healthcare Directive or Directive to Physicians), which will tell your doctors your preferences about certain kinds of medical treatment and life-sustaining procedures if you can't communicate your wishes. If your living will is properly prepared, your doctors are legally bound to respect your wishes or to transfer you to a doctor who will. Most states now provide fill-in-the-blanks living will forms.

When does a durable power of attorney end?

It ends at your death. That means that you can't give your attorney-in-fact authority to handle things after your death, such as paying your debts, making funeral or burial arrangements or transferring your property to the people who inherit it. If you want your attorney-in-fact to have authority to wind up your affairs after your death, use a will to name that person as your executor.

Your durable power of attorney also ends if:

You revoke it. As long as you are mentally competent, you can revoke a durable power of attorney at any time.
A court invalidates your document. This happens rarely, but a court may declare your document invalid if it concludes that you were not mentally competent when you signed it, or that you were the victim of fraud or undue influence.
You get a divorce. In a handful of states, including Alabama, California, Colorado, Illinois, Indiana, Minnesota, Missouri, Pennsylvania, Texas and Wisconsin, if your spouse is your attorney-in-fact and you divorce, your ex-spouse's authority is automatically terminated. In any state, however, it is wise to revoke your durable power of attorney after a divorce and make a new one.
No attorney-in-fact is available. A durable power of attorney must end if there's no one to serve as attorney-in-fact. To avoid this problem, you can name an alternate attorney-in-fact in your document.

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