The durable power of attorney (POA) is a legal form, which can be used by a competent adult to appoint another person to act as their agent to manage their financial affairs. It's 'durable' because it stays in full effect even if you become disabled. Usually at inopportune times would be when you need your agent the most, that’s why this legal form was created. Unlike a general POA it won't be inoperative when the principal, person who made the poa, becomes disabled. Although the agent has this power, he must operate under the terms, conditions, limitations, and guidelines outlined in the durable POA.

If you were ever to become disabled, for any reason during your lifetime and did not have a durable power of attorney then you have just missed your chance to appoint an agent. The only way some one could be appointed to act on your behalf is if your local Probate Court was requested to appoint someone. These proceedings are called 'Guardianship proceedings' or 'Conservatorship proceedings'. Unfortunately, this process is expensive and time consuming. That's why most people decide they don't want the court to be able to intervene, they want to be able to choose their own agent they trust, and that’s why they fill out a durable poa.

Another advantage to having a durable power of attorney is that it can be used to protect your assets. When a disabled person enters a nursing home that did not take steps to shelter some of their assets, then all of the assets could be exposed to being used to pay for the nursing home care. Under the current law, up to one half of those assets could be transferred or gifted and thus sheltered by using a properly drawn up durable poa that permitted gifting. Without a durable poa with gifting provisions then it’s unlikely a disabled person will be able to protect any of their assets if they’re emitted to a nursing home.

Defining the agent’s authority is completely up to the principal. Under the durable power of attorney, the principal can make the agents authority as broad or as limited as they wish. A typical form will be drawn up giving broad authorities so that the agent can manage any and all financial affairs. Other principals may only want their agents to handle certain assets or follow a specific wish, that’s perfectly ok too. As an example you may give your agent the power to handle your stocks, bonds, banking, insurance, and tax matters or other matters on your behalf.

Sometimes a durable power of attorney will have more than one agent. You must decide if they will act independently or decide on issues together. Most people believe its better allow them to act independently to avoid conflicts and court battles that could delay a decision. Or, instead they will name their second agent as an alternative in case something happens to the primary agent.

Disclaimer: This article has been written for information and interest purposes only. The information contained within this article is the opinion of the author only, and should not be construed as legal advice or used to make legal decisions. Consult an attorney in your area if you’re seeking legal advice.

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