What is a Durable Power of Attorney?

February 8, 2019
Levandowski & Darpino

An important part of estate planning is recognizing the possibility that you may become incapacitated at any moment, and to plan for substitute decision-making. For most people, the durable power of attorney is the most important estate planning instrument available—even more useful than a Will. A power of attorney allows you to appoint your “agent” to act in your place if/when you ever become incapacitated.

In that case, the person you choose will be able to step in and take care of your affairs. Without a durable power of attorney, no one can represent you unless a Court appoints a guardian. That Court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under the guardianship, your guardian may have to seek Court permission to take asset protection planning steps that he or she could implement immediately under a durable power of attorney. In a guardianship, the Court supervises everything that a guardian does.

Note: Clients report that they are experiencing increasing difficulty in getting banks or other financial institutions to recognize the authority of an agent under a durable power of attorney. A certain amount of caution on the part of financial institutions is understandable. When someone steps forward claiming to represent the account holder, the financial institution wants to verify that the agent indeed has the authority to act for the principal. Many banks or other financial institutions have their own standard power of attorney forms. To avoid problems, you may want to execute such forms offered by the institutions with which you have accounts in addition to a general durable power of attorney.

Any complete estate plan should include a power of attorney for health care and a Living Will. A durable power of attorney for health care designates someone you choose to make healthcare decisions for you if you are unable to do so yourself. A Living Will is a document in which you state your wishes regarding life-sustaining medical treatment if you are terminally ill with no hope for recovery and are mentally incapacitated so that you cannot make decisions for yourself. A Living Will can instruct your healthcare provider to withdraw life support if you are terminally ill or in a vegetative state.

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Levandowski & Darpino

Levandowski & Darpino, LLC has been dedicated to helping people in Southeastern Pennsylvania with their Elder Law needs for over 20 years. You will receive nothing but knowledgeable, compassionate legal guidance and representation from Henry and Maria.

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