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What Is a Durable Power of Attorney?

Posted on in Estate Planning

Oakland Power of Attorney LawyerThere are a variety of situations where a person may need help from others due to health concerns, disabilities, or other issues. In some cases, this assistance may include making decisions about the person’s medical care and treatment or the management of their finances. To ensure that these matters are handled properly, a person can create a power of attorney that will authorize someone they trust to make decisions on their behalf. There are multiple different types of powers of attorney, and in many cases, it is beneficial to create a “durable” power of attorney that will remain in effect if a person becomes incapacitated.

Durable Powers of Attorney for Healthcare and Finances

A power of attorney is a legal document that grants a person the right to make certain types of decisions on someone else’s behalf. The person who creates a power of attorney is known as the “principal,” and the person who will be making decisions for them is known as their “attorney-in-fact.” A power of attorney is considered to be durable if it will continue to allow the attorney-in-fact to decide matters on the principal’s behalf after the principal has become incapacitated. That is if the principal experiences a physical or mental condition that prevents them from making their own decisions or communicating their wishes to others, the power of attorney agreement will continue to apply, giving the attorney-in-fact the power to act on the principal’s behalf.

For a power of attorney to be considered durable, it must include language that states that the powers granted to the attorney-in-fact will not be affected by the principal’s incapacitation. Typically, one of two statements will be used:

  • “This power of attorney shall not be affected by subsequent incapacity of the principal.” - This ensures that a power of attorney that is already in effect will not be invalidated if the principal becomes incapacitated.

  • “This power of attorney shall become effective upon the incapacity of the principal.” - This will allow the terms of the power of attorney to take effect after the principal becomes incapacitated.

A durable health care power of attorney will allow an attorney-in-fact to make decisions about the principal’s medical care and treatment, including addressing matters related to end-of-life care such as whether the principal’s life should be prolonged if they have a terminal illness and what types of pain relief they should receive. A durable power of attorney for finances will allow an attorney-in-fact to address a variety of financial matters on behalf of the principal, including buying and selling property, paying bills and expenses, filing tax returns, applying for benefits, or managing a business. When creating powers of attorney, the principal can specify exactly what decisions the attorney-in-fact will be allowed to make while providing instructions to make sure their wishes are followed correctly.

Contact Our Berkeley Power of Attorney Lawyer

Powers of attorney can ensure that you will have a person you trust who can address your needs if you cannot make decisions on your own. The Law Office of Martin Alperen can help you understand your options and make sure all legal documents are created correctly. Contact our Oakland estate planning attorney at 415-534-1200 to schedule your free consultation.






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