Putting a durable power of attorney into place is a critical part of any business, personal estate, or future needs plan. A regular power of attorney, where you give someone else permission to sign for something in your behalf, becomes invalid if you become incompetent or dead. And yet that is when you need someone else’s help in signing the most.
Should anything happen to you, you don’t want to have your assets and business tied up in court until they can name a conservator to carry on. Many think of deciding what will go to whom if you pass away, but what happens if you still live but are unable to handle your affairs? With all the advances in medicine and gains in expected life span, it is much more likely that you will become incapacitated than that you will die.
A regular power of attorney becomes ineffective if its grantor dies or becomes “incapacitated,” unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated. Thus, a durable power of attorney authorizes someone else that you have chosen to manage your affairs when you are not able to. Canada calls this power an “Enduring Power of Attorney” because it endures.
Note though that any power of attorney, durable or not, ends immediately if and when you die. At that point, your living revocable trust becomes irrevocable and your successor trustee and the personal representative in your will take over.
Having a durable power of attorney does not mean you have to turn everything over to someone else as soon as you start having “senior moments”. Within the document, you should lay out provisions explaining exactly at what point you, the grantor, would be declared incompetent. And then it should list exactly what your agent will be allowed to do in your name. Do you want this particular agent to have control for only your personal affairs? Say so. Do you want to have a separate person handle your business affairs? Make a separate durable power of attorney to spell that out for a separate agent.
The durable power of attorney one of the four basic pillars of an estate plan. It ties the others together in making sure your wishes are carried out in a timely manner with a minimum of fuss.
