A durable power of attorney is a power of attorney that remains in effect even if you have become incapacitated. When you create a power of attorney (POA) as part of incapacity planning or estate planning, you want your power of attorney to remain in effect if something happens to you and illness or injury prevents you from being able to communicate or express your wishes. This means you need to use the correct language so your POA will be a durable one.
The Law Offices of James A. Miller, P.C. can provide you with assistance creating a durable power of attorney and can help you throughout the entirety of the process of incapacity planning.
Our legal team can help you to determine if a POA and other legal tools will provide the protection you need in case something happens to you. We can also assist you in identifying the steps that you need to take to keep your wealth secure and maintain control over your important decisions, even if you get sick or hurt. Give us a call to find out more.
How do You Create a Durable Power of Attorney?
A power of attorney is a document in which you name an agent and you give the agent authority to take certain actions on your behalf and to make certain decisions for you. You can create a limited power of attorney if you just want someone to be able to do a specific task for you, like sign a contract if you have to be out of town on the day the agreement must be signed. You can also create a general power of attorney which gives a broad grant of authority to someone who you trust to act on your behalf and make a wide variety of decisions for you.
A general power of attorney is commonly used in incapacity planning because you can designate the person who will take over in managing your assets and your affairs if something happens to you. The problem is, your power of attorney’s grant of authority will end upon incapacity unless you have created a durable power of attorney. This means that if you do not properly create a durable power of attorney, the POA that you create is not going to provide the expected protections when incapacity happens.
Massachusetts section 5-501 explains how you can create a durable power of attorney. You have to designate who your agent will be and your power of attorney document has to contain language saying one of the following:
- ”This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time.”
- “This power of attorney shall become effective upon the disability or incapacity of the principal.”
- Similar words that indicate your intend to make the power of attorney a durable one that remains in effect after incapacity.
An experienced attorney can provide you with help creating a durable power of attorney and including the right language so your grant of authority is enforceable, legally valid, and able to remain in effect even once you have become incapacitated.
Why Do You Need a Durable Power of Attorney?
Unfortunately, there is a potential risk of injury or illness occurring at any point in time. You do not want to get hurt, or get very sick, and not be able to make decisions about your own assets or affairs… but this could happen to you regardless of your age. If you haven’t made advanced plans, you will not have control over what happens to your assets or your future, and your family will be in a bad situation because they will have to go to court and initiate guardianship proceedings.
By making a durable power of attorney, you maintain at least some autonomy since you got to select a trusted person to act on your behalf, rather than just getting stuck with whomever the court decides should be your guardian. Your family also is spared difficult court proceedings and hard choices about who should be your guardian or what decisions are best for you.
Getting Help from An Incapacity Planning Lawyer
The Law Offices of James A. Miller, P.C. can help you with the incapacity planning process, including the creation of a durable power of attorney and other appropriate legal tools. To find out more about what should be a part of your incapacity planning, give us a call at 866-370-3888 or contact us online today. You can also join us for a free seminar to discover more about the incapacity planning process in Massachusetts. Call today so you are prepared for whatever happens in your future.
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