What is a Durable Power of Attorney?

You've probably heard the expression "durable power of attorney," but do you know what a durable power of attorney involves, and how it differs from a regular power of attorney? Unless you have a power of attorney as part of you estate plan, you may not be clear on the distinctions.

Before we go into detail on durable powers of attorney, let's talk about what a power of attorney does. A power of attorney (POA) allows you (the principal) to designate another person (the agent, or attorney-in-fact) to take actions or make decisions on your behalf. You might have a POA for financial matters, for health care decisions, or for both.

You might make a POA specific (limited to one event, such as authorizing someone to act in your stead for a real estate closing), limited (allowing an agent to take only certain actions on your behalf, but not others) or general. You can choose for a POA to take effect immediately, or to make it "springing," meaning it will take effect on the happening of some specified event in the future. And you can choose for your power of attorney to be durable.

The Difference Between a Power of Attorney and a Durable Power of Attorney in Ohio

The difference between a regular power of attorney and a durable power of attorney is that a durable power of attorney does not terminate when the principal becomes incapacitated. Whereas an ordinary power of attorney becomes ineffective when the principal is mentally or physically disabled and can no longer communicate, a durable power of attorney continues.

This is a critical distinction If your primary purpose in putting a power of attorney in place is to have a trusted person making decisions when you are no longer able to communicate your own wishes, a durable power of attorney is what you need. Because you can choose to make a power of attorney "springing," you can remain in control of your own decisions as long as you are capable, then have a trusted person take over when you are no longer able to make choices or take legal action on your own behalf.

When Do I Need a Durable Power of Attorney?

It's never too early to put a durable power of attorney in place, but it can be too late. A durable power of attorney is not revoked by your incapacity, but if you are not legally capable of contracting, you also cannot grant an agent power of attorney over your affairs.

A delay in creating a power of attorney can lead to unnecessary expenses and trouble. Imagine, for example, the common scenario of an elderly person who has developed Alzheimer's disease. His family becomes aware of the progression of the disease after he has been swindled by someone who preys on the vulnerable elderly. In order to protect what remains of his finances, they try to get power of attorney, but because of his illness, he is not legally capable of granting it (and may well refuse to, anyway). Now the family must spend the time, money, and effort to go to court to get a legal guardian appointed.

Durable powers of attorney are not just for those who are older. Another scenario in which it is wise to have a durable medical power of attorney is in case of a medical emergency involving an adult child. In the event your child, newly a legal adult, should be incapacitated by an illness or sudden injury, a durable power of attorney will allow you to receive medical information and make decisions about his or her care.

How Do I Create a Durable Power of Attorney in Ohio?

In order to make sure your durable power of attorney is effective and protects your rights and assets in the way you intend, you should have an experienced Ohio estate planning attorney prepare them. Ideally, a durable power of attorney will be very specific, to meet your particular needs and not grant your agent more power than necessary. The experienced estate planning lawyers at Gudorf Law Group can guide you through the process of identifying your needs, selecting an agent, and preparing the durable power of attorney. Please contact Gudorf Law Group online or call 1-937-898-5583 today for a free consultation.

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