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What is a Durable Power of Attorney?

POA

Have you been asked to sign a durable power of attorney? How does a durable power of attorney differ from a standard power of attorney? It’s important to understand how these power of attorney documents differ. It’s recommended you speak with a Washington DC estate planning attorney prior to allowing someone else to act as your power of attorney.

What is a Power of Attorney

A power of attorney document gives someone else the legal authority to act on your behalf. The person who gives the authority is referred to as the principal, while the person who receives the authority is referred to as the agent or attorney-in-fact. A power of attorney can cover different types of situations and aspects of your life.

How Does a Durable Power of Attorney Differ?

Typically, a power of attorney would expire in the event several situations occur:

  • The principal revokes or cancels it;
  • The principal dies;
  • The power of attorney has an expiration date; or
  • The principal becomes mentally incompetent.

A durable power of attorney means that if a person becomes mentally incompetent, the power of attorney would continue to be in effect. Durable power of attorneys can still be challenged in some instances if a court action is filed.

What Authority Does a Power of Attorney Grant?

You can have a power of attorney for different aspects of your life. However, there are certain things an agent or attorney-in-fact cannot do, even if the power of attorney says they can. For example, they could not revoke or create a will or codicil to a will. Or, in situations where the principal has power of authority to act as a guardian or conservator for another person, your agent cannot assume those responsibilities as though they are now the power of attorney for the third party.

The two most common types of authority with a power of attorney are related to finances and medical care. A medical power of attorney is a health care directive, sometimes called a living will. A financial power of attorney will give someone else the authority to act on your behalf for financial transactions.

When is a Durable Power of Attorney Active?

The power of attorney is effective once the principal signs it, unless there is a stipulation that states the power of attorney is only to be effective in the event something happens in the principal’s life. The most common stipulation is that it only becomes effective if the principal becomes incapacitated, disabled, or incompetent.

If you are being asked to sign a durable power of attorney as the agent or attorney-in-fact, it is also recommended you speak with a Washington, D.C. estate planning attorney prior to signing it. An experienced attorney can help you understand what your expected duties are under the particular power of attorney.

Retaining an Estate Planning Attorney in Washington DC

If you have questions or need assistance drafting a durable power of attorney, contact the team at Tobin O’Connor & Ewing at 202-362-5900 to schedule a consultation.

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