Durable Power of Attorney: Health Care and Finance

James Parker
April 4, 2022

What Is Durable Power of Attorney?

Durable power of attorney when it comes to trust and estate law is a specific variety of power of attorney granted to an individual with fewer restrictions than non-durable power of attorney. Power of attorney refers to a document that gives an individual, known as the agent, the power to act on behalf of an individual, known as the grantor, in official settings. 

The grantor may want to give the agent power in order to accomplish tasks that the grantor themselves would not be able to do otherwise. Power of attorney allows the agent to act in the grantor’s interests when the grantor is otherwise unavailable. 

Durable power of attorney is distinct because it specifically allows the agent to act even if the grantor is incapacitated, missing, or otherwise unable to act. This durability allows the agent to enforce the grantor’s wishes, even in medical situations involving the grantor’s life or safety. 

Power of attorney can be revoked. If the grantor feels that they no longer require the agent, and are mentally capable of understanding the consequences of revoking the agent’s power of attorney, they can amend the original power of attorney document or declare the agreement concluded. This allows the grantor to once again be the sole holder of power over their health, finances, and rights.

Key Takeaways

  • Power of Attorney grants someone the right to make decisions on behalf of another person with their full authority. 
  • Durable power of attorney is distinct because it allows the agent to retain their power even if the grantor is incapacitated.
  • Durable power of attorney can be vital to ensuring that the grantor’s medical wishes and property rights are respected even if they themselves are unable to advocate for themselves.
  • If you want to establish a durable power of attorney, an experienced Trusts & Estates attorney may be able to help you achieve this goal by utilizing experience and expert knowledge.

Durable Power of Attorney, Trusts, and Estates

Durable power of attorney is distinct in its ability to continue to give the agent power even when the grantor is physically or mentally unable to express their wants and needs. This gives rise to two very specific types of durable power of attorney: medical power of attorney and financial power of attorney. 

Medical power of attorney, also called a health care proxy, health care surrogate, or something similar, allows the agent to assist the grantor in expressing their medical needs. An agent granted durable power of attorney for health care is allowed to access the grantor’s medical records, speak with the grantor’s physicians and health care team, and even make important health decisions.

An agent acting on behalf of the grantor’s health is sometimes guided by explicit preferences and instructions left by the grantor in a document called a health care declaration. This document will list instructions for the agents and health care providers. Sometimes this document is combined with the health care durable power of attorney document for simplicity. 

By establishing a durable power of attorney in health care settings, the grantor can ensure that their wishes are respected. This can include life-or-death decisions such as signing a do not resuscitate order or deciding when the appropriate time to terminate life support on the comatose grantor will be. 

Durable financial power of attorney allows the agent to manage and control the grantor’s financial assets. Agents acting on behalf of the grantor are authorized to deposit checks into the grantor’s accounts, check their mail, or even hire an expert to do the grantor’s tax returns with the grantor’s assets. The exact extent to which the agent may manage or interfere with the grantor’s assets can be established and limited within the contract of the durable financial power of attorney. 

Bottom Line 

Durable power of attorney can be vital to ensuring that your wishes are respected in the event that you are unable to advocate for yourself. If you want to establish durable power of attorney to preserve your wishes, you will need a trusts & estates attorney.

An experienced trusts & estates attorney can ensure that your durable power of attorney is constructed to fit your specific needs. By utilizing exact language, a trusts & estates attorney can ensure that your agent has all of the power you need them to have while minimizing the possibility of overreach by placing strict limits on the agent’s power.

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