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By Bernard A. Krooks, Certified Elder Law Attorney

If you have done your estate planning, you probably have signed a durable power of attorney (DPOA). This is one of the most important documents you can ever sign. A DPOA allows you to appoint someone else to make financial decisions for you in case you are unable to make those decisions yourself. This can occur if you become incapacitated, are simply away on vacation, or for any other reason. 

What does “durable” mean in a power of attorney? Durable means that the power of attorney is not affected by the subsequent incapacity of the principal (you). Thus, a DPOA gives your agent (the person you appoint to make decisions for you) the power to act on your behalf even if you become incapacitated. This is a particularly important provision since that is exactly the time that you may need someone to make decisions for you. If your power of attorney is non-durable, then it becomes ineffective upon your incapacity. If properly drafted, a DPOA could allow an agent to write checks on the principal’s behalf, sign documents for them, or manage the principal’s real estate, all while the principal is incapacitated. An agent under a DPOA does not, however, have the authority to make medical decisions on behalf of the principal. Those decisions are made by an agent under a Health Care Proxy. The agent under a DPOA will, however, have access to your medical bills for the purposes of determining how much to pay and dealing with medical insurance issues and claims. 

Why do I want a durable power of attorney? You may not like the idea of an agent acting on your behalf when you are disabled or incapacitated. However, that is exactly the time when you will need someone to act on your behalf. You may also think it sounds like an opportunity for an agent to abuse their power; and, it potentially is, so you should choose your agent very, very carefully. Imagine, you have dementia and are unable to remember to pay your bills. You likely would want an agent to act on your behalf and pay those bills for you. 

Moreover, once you have lost capacity, you are no longer able to execute a DPOA. If you do not already have a DPOA, your family may need to commence guardianship proceedings in order to make decisions for you. This is a time-consuming and expensive process, and you may have no control over who the court appoints as your guardian. A DPOA gives you the ability to choose who is acting on your behalf when you really need someone to. 

Types of durable powers of attorney: Typically, the powers granted under a power of attorney become effective immediately when the document is fully executed. Thus, your agent will be able to act, even before you are incapacitated. Then, because the power of attorney is “durable” it remains effective even when you become incapacitated. The powers granted under the DPOA “survive,” so to speak, even though you become incapacitated. 

Another type of power of attorney is the springing power of attorney. A springing power of attorney becomes effective upon your incapacity. While this may sound good in theory, it actually can be problematic in real life since it is often difficult to prove or determine that the principal lacks capacity. Thus, when you need the agent to act on your behalf, they are unable to do so since they are having difficulty establishing your incapacity. 

Does the DPOA last forever?  Just because a power of attorney is durable, does not mean it lasts forever. The principal has the power to revoke a power of attorney so long as they have capacity. Life changes. The person you want making decisions for you now, might not be the person you want making decisions for you in a few years. So long as you still have capacity, you can revoke your DPOA and execute a new one with a different agent. With that being said, you should always choose an agent you trust completely. Also, an agent only has the authority to act under a power of attorney during the principal’s lifetime. Once you die, it is up to your executor or trustee to make decisions about your assets.

Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP. He was named 2021 “Lawyer of the Year” by Best Lawyers in America® for excellence in Elder Law and has been honored as one of the “Best Lawyers” in America since 2008. He was elected to the Estate Planning Hall of Fame by the National Association of Estate Planners & Councils (NAEPC). Krooks is a past Chair of the Elder Law Committee of the American College of Trust and Estate Counsel (ACTEC). Mr. Krooks may be reached at (914-684-2100) or by visiting the firm’s website at www.littmankrooks.com.