Durable Power of Attorney
In 1954, Virginia became the first jurisdiction to enact a Durable Power of Attorney law; in 1987, the District of Columbia was the last. Most states passed Durable Powers of Attorney laws in the 1970s and 1980s patterned after the Uniform Durable Power of Attorney Act, which has been adopted in 47 states.
A Durable Power of Attorney might possibly be the most important legal document that you ever execute because unlike a will, which takes effect only at death, a Durable Power of Attorney is a document that can turn over the control of your entire financial dealings to another person while you, the principal of the Durable Power of Attorney, are still alive. It is not unusual for a Durable Power of Attorney to provide for important Medicaid eligibility planning powers, the power to make gifts on your behalf and the power to make trusts as well as to change beneficiary designations on life insurance, annuities or retirement accounts. Although it is perhaps the most important document you may ever make, it also carries the most potential for abuse and is one that you should carefully consider before doing.
Generally, the magic words that must appear in a Power of Attorney to make it a Durable Power of Attorney are words to the effect of “This Power of Attorney shall not terminate upon the disability or incapacity of the principal.” Although other words and phrases are allowed to be used, lawyers as a group prefer to copy language that they are confident has the approval of the law, so it is most likely that your Durable Power of Attorney will have these exact words. Most states also permit another kind of Durable Power of Attorney that only becomes effective upon the incapacity or disability of the principal, in which case the words “This Power of Attorney shall become effective upon the disability or incapacity of the principal” will appear. Once again, although other words may be used to accomplish the same purpose, uncreative and risk-averse lawyers will most often use that exact language.
Unlike the immediate Durable Power of Attorney, which takes effect at its signing, the springing Durable Power of Attorney is like an insurance policy. It takes effect only upon the happening of a specified event such as a physical or mental incapacity. Often the determination of a physical or mental incapacity is left to the principal’s primary care physician.
A Durable Power of Attorney can be as broad or as narrow as you wish. It can (and should be) tailored to your own specific needs and should not be done with a cookie-cutter, one form fits all. It is effective until either you revoke it or until it terminates by its own terms (such as when it is done for a specific purpose like signing papers for the sale of a house) or upon your death.
There are four items that must be in a Durable Power of Attorney. First, it must, of course, name the principal whose Durable Power of Attorney it is. Second, it must name the attorney-in-fact. It also is advisable to name a backup or successor attorney, although that is not required by law. Third, it must state the powers specifically being granted. Many General Durable Powers of Attorney are too sparse in this regard, and that can be a real problem, particularly in the area of effectiveness when dealing with the IRS on taxes, making gifts if not specifically authorized to do so, and dealing with retirement accounts. Fourth, and obviously of great importance, are the magic words to either indicate that the Power of Attorney is an immediately effective Durable Power of Attorney or a springing Durable Power of Attorney.
More than one person can be named as the attorney-in-fact; however, if you do have more than one named attorney-in-fact it is important to state in the document whether both attorneys must act together in agreement or if either is independently authorized to act on behalf of the principal. Either of these alternatives has obvious drawbacks. Getting both to agree to act in a timely fashion can present problems as can allowing two or more people with different strategies to operate independently. My preference (in case you asked) is to have only one person at a time named as the attorney-in-fact, with a backup named if the original attorney-in-fact is unable to act.