Durable Power of Attorney

If you become incapacitated and can no longer manage your affairs, a durable power of attorney can help ensure that someone you know and trust will act on your behalf.

If you’re in the process of long-term care planning or estate planning, a durable power of attorney can be a very important tool.

What Is A Durable Power Of Attorney? 

A durable power of attorney is a written legal document that gives someone you trust (known as an agent) the right to act on your behalf. If you become mentally incapacitated (i.e. no longer able to handle your affairs), the agent can make financial and medical decisions on your behalf. An agent can do things like pay your bills, handle your investments or make decisions on medical care. If you want an agent to handle both your financial and medical decisions, you will need two separate documents.

Financial Power of Attorney 

A financial power of attorney gives someone the authority to make financial decisions on your behalf. You can give this trusted person as much or as little authority over your finances as you want. Your agent doesn’t necessarily have to be a financial expert. However, they do have to be someone you trust. If needed, your agent can hire a professional to help with your financial affairs.

Medical Power of Attorney 

A medical power of attorney is a medical directive. Medical directives are documents that outline your wishes for medical care if you are unable to make decisions yourself. Like with a financial power of attorney, a medical power of attorney gives a trusted person the ability to make medical care decisions on your behalf. Your agent will work with doctors to ensure that you receive the medical care that you desire.

Agents are legally obligated to follow your known wishes for health care.

A medical power of attorney is often accompanied by a living will or a health care declaration that includes written instructions for doctors. In North Carolina and many other states, you can combine your health care declaration and medical power of attorney into a single document called an advance health care directive. A durable power of attorney – financial and medical – plays an important role in long-term care planning. It ensures that if you are unable to make decisions for yourself, someone you trust can make them on your behalf.

Who Needs a Durable Power of Attorney? 

A durable power of attorney is useful for anyone going through the estate planning or long-term care planning process. If you become mentally incapacitated or unable to manage your affairs, a durable power of attorney will give you peace of mind that someone you trust is making important decisions on your behalf. Creating and signing a durable power of attorney doesn’t necessarily make it active. A document called the “springing power of attorney” will outline the conditions that activate the durable power of attorney. This document clearly defines the type of event or level of incapacitation that will trigger the durable power of attorney. Until (or if) these conditions arise, the durable power of attorney remains inactive.

Essential Factors of a Durable Power of Attorney 

Like any other legal document, a durable power of attorney must contain certain elements and follow a certain process.

The first and most important thing is to ensure that the document is in writing. A written document provides clarity, helps avoid confusion, and is a more reliable way to grant a durable power of attorney.

In North Carolina, a durable power of attorney form should include:

  • The designation of an agent (the person you trust and are naming as your agent) and principal (you).
  • The designation of successor agents if your initial agent is unable or unwilling to act on your behalf. You can also give your acting agent full power to appoint another agent or revoke another agent’s power if you choose. Successor agent designations are generally optional, but it’s a good idea to name them. This gives you greater peace of mind that someone you trust will act on your behalf if your initial agent is unable to.
  • Grant of General Authority. This section allows you to choose which subjects your agent will have authority over and can include things like managing your real estate, stocks and bonds, litigation, insurance policies, bank account, taxes, retirement plans, and more.
  • Grant of Specific Authority, or Additional Provisions and Exclusions. This is an optional section that allows you to grant authority for specific situations, such as changing beneficiary designations, access your electronic communications, make gifts on your behalf, etc.
  • Guardian appointment (optional). You may also appoint your agent as a guardian for your estate or general guardian.

Of course, the document must also be signed by you and notarized.

Do I Need a Lawyer for a Durable Power of Attorney? 

While it is possible to find and download durable power of attorney forms online, it’s in your best interest to have a lawyer handle this process for you. Every state has its own rules for durable power of attorney, and if you don’t follow North Carolina’s rules, you may find yourself without a trusted person to act on your behalf if you’re not able to. A lawyer will ensure the appropriate forms are filled out and filed properly.

Furthermore, durable power of attorney forms can be complicated and difficult to understand. A lawyer will explain each section of the document and answer your questions. When you sign a durable power of attorney, you’re giving another person the right to make important decisions if you’re unable to do so. When so much is at stake, you want an experienced lawyer to walk you through the process and ensure that everything is done properly.

Frequently Asked Questions

What is the difference between a power of attorney and a durable power of attorney?

The difference between a power of attorney and a durable power of attorney is how long the document is valid. A regular power of attorney does not remain in effect once someone is incapacitated, but a durable power of attorney DOES remain in effect in this situation.

Is a durable power of attorney good for medical decisions?

A durable power of attorney is an excellent option for granting someone the power to make medical decisions on your behalf. Creating a medical durable power of attorney before you are medically incapacitated will ensure that someone you know and trust will be in charge of these decisions if you are unable to make them on your own.

When is a good time to get a Power of Attorney in place?

Anytime, really.  Every adult needs to have parameters in place as to who can make decisions should they not be able to.  In fact, once a person turns 18, there are considerable changes as to who can access what personal information and decision-making.  It’s a good idea to have a POA done for anyone 18 years of age and up since, by then, parents/guardians will no longer have access to nor decision-making power regarding finances, healthcare, and some educational records access.

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