WHAT IS A DURABLE POWER OF ATTORNEY?

 

There may come a time, whether due to accident or illness, where you are unable to make decisions for yourself. A durable power of attorney is an essential estate planning tool that allows you to prepare for this ahead of time. It is a written document that gives another person full or limited legal authority to sign on your behalf.

 

 

The person who creates the durable power of attorney is called the “Principal.” The individual the Principal names in the document to act on their behalf is called the “Agent.”

What Does “Durable” Mean?

“Durable” means that the power of attorney is valid through incapacity; the Agent can continue to act when the Principal is not mentally competent. A person is mentally incompetent if they are unable to make informed decisions, e.g., they are in a coma or suffering from Alzheimer’s disease.

In contrast, powers of attorney that are not durable are void when the Principal becomes incompetent.

General Power of Attorney in Phoenix

A general durable power of attorney gives the Agent complete authority to act in a broad range of matters, such as managing banking and investments, operating a business, or handling taxes.

Special Power of Attorney in Phoenix

A special durable power of attorney gives the Agent limited authority to act in only the specific circumstances that the Principal outlines in the durable power of attorney. For example, a person could only give an individual the ability to sell their home.

When Does a Durable Power of Attorney Go Into Effect?

You have the power to decide when you want your durable power of attorney to go into effect. If you fail to specify otherwise, the durable power of attorney will become valid after you sign it. However, if you want the durable power of attorney to only go into effect after some future event, you can draft a “springing event” in the document. For example, many people only want the durable power of attorney to go into effect after they are incapacitated.

After the durable power is in effect, it will be valid through even through incapacity. It will only end at death or if the Principal revokes the durable power of attorney. As long as a Principal remains competent, he or she has the authority to make legal decisions, even if a durable power of attorney is in effect.

Who May Serve as an Agent in Phoenix?

Although sometimes referred to as an “Attorney-in-Fact,” an Agent does not need to be an attorney nor have any sort of formal education. Rather, any competent person over the age of 18 can be an Agent. Furthermore, the Agent does not need to be a resident of Arizona.

Even though there are limited legal restrictions on who can be an Agent, you must think very carefully about who you will name. You should pick someone who you trust because this person will have considerable power when you are at your most vulnerable.

Can You Revoke a Power of Attorney?

You can revoke or revise a durable power of attorney at any time as long as you are competent. To revoke means that you cancel the legal document and take away any power that you granted.

For a revocation to be valid, you must terminate the durable power of attorney in writing and give the revocation to the Agent that you had named. You must also provide a copy of the revocation to any interested party, like a bank or financial institution.

Should You Use an Attorney?

A quick google search will lead you to hundreds of form fill-in-the-blank durable powers of attorney. Although they may seem quick and easy, you should steer clear of these documents and instead consult with an estate planning attorney. Every person’s situation is unique, and form documents don’t allow you to modify the durable power of attorney so it works the best for you.

Every state has different requirements for a durable power of attorney to be valid. To make sure that your durable power of attorney is up to date with Arizona law, you must talk with an experienced attorney.

Your Phoenix Estate Planning Attorney

Nicole Pavlik is an experienced Phoenix estate planning attorney who can help you prepare for the unexpected by creating a durable power of attorney that works for you and your family. If you are interested in creating a durable power of attorney, call Nicole Pavlik Law Firm today at (602) 635-6176 for a free consultation.