A durable power of attorney is an extremely important estate planning tool. If you become incapacitated due to dementia or some other reason, this crucial document allows the person you appoint (your “attorney-in-fact” or “agent”) to act in place of you (the “principal”) for financial purposes. The agent under the power of attorney can quickly step in and take care of your affairs. The “durable” aspect of a power of attorney allows the document to remain valid after your incapacity.
But in order to execute a power of attorney and name an agent to stand in your shoes, you need to have capacity. Regrettably, many people delay completing this vital estate planning step until it’s too late and they no longer are legally capable of doing so.
What happens then? Without a durable power of attorney, the only option for overseeing and protecting an incapacitated individual’s person and property may be to seek to have a court appoint a conservator or guardian for the incapacitated person. That court process takes time and costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservatorship the representative may have to seek court permission to take planning steps that he or she could have implemented immediately under a simple durable power of attorney.
This is why it’s important that you have a durable power of attorney in place while you have the capacity to execute the document. The standard of capacity varies from jurisdiction to jurisdiction. In some instances this threshold can be quite low: The client need only know that he trusts the agent to manage his financial affairs. In others the rule is that since the agent generally has the right to enter into contracts on behalf of the principal, the principal should have the capacity to enter into contracts as well, and the threshold for entering into contracts is fairly high.
If you do not have someone you trust to appoint as your agent, it may be more appropriate to have the probate court looking over the shoulder of the person who is handling your affairs through a guardianship or conservatorship. In that case, you may execute a limited durable power of attorney that simply nominates the person you want to serve as your conservator or guardian. Most states require the court to respect your nomination except for good cause or lack of qualification.
Because you need a third party to assess capacity and because you need to be certain that the formal legal requirements are followed, consult with an experienced attorney regarding a durable power of attorney before it’s too late.