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The role of a durable power of attorney in an estate plan

Powers of attorney have many uses. They may allow a spouse to sign for you on closing documents with the sale of a home or let parents control a bank account while you reside overseas.

These documents are an important piece of every estate plan as well. When drafted properly, power of attorney directives can avoid the time consuming and costly need for a guardianship proceeding. In this post, we discuss their role and the different types.

The scope of authority

When you complete a power of attorney, you are called the principal. You grant an "attorney in fact" or "agent" the authority to act on your behalf. This permission is may be limited or general purpose.

A special power of attorney can serve in your stead for just that one transaction, and have nothing to do with any of your other affairs. With a general power of attorney, the agent is able to do multiple tasks.

The following are requirements of any power of attorney:

  • You must be 18 or older
  • Have the necessary mental capacity; and
  • Put the agreement in writing with notarized signatures.

Be aware that a general power of attorney has limitations. If you are incapacitated a guardian might still be necessary.

The benefit of a durable power of attorney

A durable power of attorney comes into play upon incapacity when you can no longer make decisions for yourself. It will allow a trusted family member or friend to make personal and financial decisions for you.

You generally have the ability to revoke a power of attorney arrangement as long as you remain of sound mind. Communication is important and you would want to let the person you list as agent or attorney in fact of any changes.

Before completing any power of attorney, you should speak with a lawyer. An attorney can help you decide what is necessary to accomplish your goals.

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