Common Questions
About Estate Planning
What is a durable power of attorney?

A durable power of attorney is one of the most important documents in an estate plan. It gives a person, known as an "attorney-in-fact" the power to act on behalf of the person who has executed the document, even if such person has become disabled or mentally incompetent after executing the document. It is very important to note that the "attorney-in-fact" does not need to be an actual attorney at law. In most cases, such "attorneys-in-fact" are actually spouses, close family members, or close friends. Usually the durable power of attorney will contain the following or similar words: "This power of attorney shall not be affected by the disability of the principal" which means that the document shall remain valid even if the person signing the document becomes incapacitated, incompetent, suffers a stroke, or lapses into a coma. The durable power of attorney should be prepared or at least reviewed by a lawyer and will contain specific language outlining the many duties of the "attorney-in-fact." Usually most durable powers of attorney allow the appointed "attorney" to perform acts such as signing legal documents, transferring real estate, depositing and withdrawing funds, paying bills, and handling personal property. In short, the person who has the "power of attorney" can do the same acts that the person who signed the power of attorney had been performing prior to being incapacitated. A durable power of attorney is a simple and inexpensive alternative to formal and legal guardianship/conservatorship proceedings. It is also important to note that once a guardian has been formally appointed by the court, then usually the durable power of attorney becomes null and void. Furthermore, a power of attorney is no substitute for a will. A power of attorney becomes null and void after the person passes on.

Who keeps the durable power of attorney?

In most cases, the person named as the "attorney-in-fact" should retain the original document and copies should be provided to your attorney or to any other important person. The document should be kept in a safe place for immediate use if the person who executed the document becomes incapacitated or mentally impaired.

What is a guardian or conservator and what is the difference between these terms?

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