Do You Need a Durable Power of Attorney?

Posted on December 15, 2009

As you get older, illness or injury may make it difficult for you to make decisions, both financial and personal. If you have a family member or friend whom you trust, you may ask that person to make decisions for you when the time comes.

There is good reason to consider signing a Durable Power of Attorney:   to name a trustworthy and capable decision maker. If you become incapacitated, then your family member or friend can take care of things for you without having to go to the time and expense of asking a court to appoint him or her  Guardian and Conservator.  Signing a simple Durable Power of Attorney, with the help of a lawyer, can make things easier.

With a General (Financial) Durable Power of Attorney, you name someone as your decision maker (called your “agent” or “attorney-in-fact”) regarding your money and property. That person will have the power to withdraw money from your banks, pay your bills, or sell or rent out or mortgage your house — everything you can do, yourself.  This Power of Attorney can take effect immediately.   Or, it can be written so that it is a “Springing” Durable Power of Attorney, taking effect later, after a doctor has stated in writing that you are incapacitated.

A Health Care Power of Attorney (also called an Advance Health Care Directive) names a decision maker to make decisions about your health care, if you are too ill or incapacitated to make your own decisions. Your decision maker can decide: what hospital you go to; who your doctor will be; whether you undergo surgery; what medicines you are given; whether you get care in your own home or in a nursing home or other facility.

Your Health Care Power of Attorney/ Advance Directive may also include a Living Will declaration, which states what types of care you receive if you are in a terminal condition. If it is your wish, you can direct that life support not be given to you under these circumstances, but that comfort measures and pain relief continue.

It is important that the decision maker you choose be trustworthy. The power of attorney gives that person lot of power, to help you or to hurt you.

If you change your mind about the power of attorney, you can revoke it, or take it back, as long as you are still of sound mind. You can name someone else as the decision maker, or you can decide you want to make all your decisions yourself.

Sally Wagley

Attorney Sally M. Wagley focuses her practice on elder law, estate planning, probate and special needs trusts. She is a leader in the field of elder law, as an author, legislative advocate and teacher. For more on Sally’s education and experience, view Sally's full bio