A Durable Power of Attorney is a document that is used in Estate Planning to protect against incapacity. More specifically, the inability to make financial decisions. In this particular document you, as the Principal, name an Agent, also referred to as an Attorney-in-Fact. In the event that you lose the ability to make financial decisions due to an accident or illness, your Agent may access your finances to pay bills and make financial decisions on your behalf.
A Power of Attorney becomes a legal document as soon as it is signed by you and notarized by a Notary Public. Under the statutory form it is effectively immediately unless you designate the Agent’s power as a springing power in the Additional Notes section. A springing power becomes effective on an event such as incapacity.
A Durable Power of Attorney is valid as long as it is not revoked. The statutory form is “Durable” which means that is valid after incapacity unless it is noted that the Power of Attorney is for a limited time or purpose. All Power of Attorney forms are only valid during life and are revoked on death.
Many people name their spouse or their oldest child as their Agent. It is important to think of the practicality of taking care of your finances in regards to distance and the Agent’s ability to make financial decisions. It may be difficult for an Agent to travel from the Mainland or even a neighbor island so it is important to consider distance when naming an Agent. You should also consider the likelihood of incapacity because if your Agent also lacks the ability they will not be able to serve as your Agent. Lastly, you should always designate an Agent whom you trust with your finances.
What Happens If I Don’t Have One?
Ideally you should get a Durable Power of Attorney as part of an Estate Plan before you lose the ability to do so. If you do not execute this document before you lose capacity, you and your family will likely have to go through the court process called Conservatorship of the Estate in order for someone to take care of your finances.
Disclaimer: Do not rely on the above information as legal advice. This information does not create an attorney-client relationship. This information is for informational purposes only and is not meant to be legal advice. You should seek legal counsel from an attorney when approaching an Estate Planning issue to be sure you have a well thought out and integrated plan to achieve your goals. Past results do not guarantee future results.
If you determined that you want a Durable Power of Attorney, contact us for your free consultation.