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What is a Durable Power of Attorney?

Estate planning makes it known to your surviving family and friends what your preferences are after you’ve passed away or become unable to make decisions for yourself. While planning your estate, you may look into who you would authorize as your power of attorney (POA) while you are still alive and healthy, so you are prepared in the event that you cannot take care of yourself.

The state of California permits agents (those that are given POA) to be granted four distinct types of powers of attorney over the principal (the individual whose rights are being given to the agent):

  • General POA: Grants an agent the same authority as if they were the principal themselves making decisions.
  • Limited POA: Grants an agent the authority to make decisions regarding certain aspects of the principal’s life, such as handling real estate transactions on their behalf.
  • Medical POA: Grants an agent the authority to make health-care decisions in the event a principal cannot make them for themselves
  • Durable POA: Grants an agent the authority to continue their power of attorney control, even if the principal is rendered incompetent or incapacitated.

Why is It Important to Have a Durable Power of Attorney?

Typically, if the principal of an estate has not given their agent ‘durable’ power of attorney, any authority granted to that agent ends if the principal is rendered incompetent or incapacitated. The durability of power of attorney can apply to a general, limited, or medical POA, but it has to be clearly stated by the principal in the original documentation.

Granting someone a durable power of attorney is essential because one of the most common reasons a principal would install a POA is to have someone handle their affairs if they could not do so for themselves. In California, a principal can make their agent’s medical power of attorney durable as part of an advance health care directive, combining the power to decide on medical treatment for an incapacitated principal with the ability to make end-of-life decisions.

How Do I Decide on My Durable Power of Attorney Agent?

The agent you grant a durable power of attorney to will have as much power as yourself, the principal. Granting durable power of attorney means that if you are rendered incapacitated, possibly due to an accident or medical issue, that person will handle all of your affairs. When deciding on this vital role in your life, consider the following:

  • Who is someone local who can begin making decisions quickly in an emergency?
  • Who could act as an alternate in your stead?
  • Who will have the capacity to care for you physically?
  • Who is someone you trust implicitly to handle your finances?
  • Who is best prepared to carry out any required task that you may need if you are incapacitated?
  • Who will be alive and healthy when you will need them?

Once you’ve narrowed down the person who fits all or most of the above requirements, you have a good idea of who you can trust with the responsibility of a durable power of attorney.

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

Any attorney practicing in your state should be able to prepare a durable power of attorney document and ensure that it is valid under your state’s laws. There are also online forms, but be careful that they include the language making it a durable power of attorney. After you prepare the documents, they will need to be signed by two witnesses older than the majority or by a notary. The durable power of attorney need not be notarized if two witnesses are at the signing.

Now that you know how important it is to have a durable power of attorney, if you’d like to set one up or want to ensure that your current power of attorney is durable, call our law office for a consultation.

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Estate Planning Attorney Eric Ridley