Durable Power of Attorney

A durable power of attorney allows you to appoint a trusted relative, friend or other “agent” to handle specific legal and financial responsibilities if you become unable to do so yourself.

If I complete a durable power of attorney, do I still need a will?

Yes. A durable power of attorney is valid only while you are alive. You still need a last will to explain how you want your estate to be managed and distributed after you die.

How much decision-making authority can I grant through a power of attorney?

Generally, you can grant authority to make any or all of your legal or financial decisions (e.g., those related to banking, accounts, insurance, taxes, real estate, etc.). You can choose which powers you want to grant, with one significant exception. You cannot authorize your attorney-in-fact to make changes to your last will.

What is the difference between an agent and an executor?

An agent can make decisions for you only while you are alive. An executor can make decisions on behalf of your estate only after your death.

When does my durable power of attorney end?

Your durable power of attorney ends automatically when you die. In California, your durable power of attorney will end automatically if you get a divorce and your ex-spouse was your agent.

To whom can I grant the power of attorney?

You can grant the power of attorney to any competent adult. However, you should be careful to select only someone you trust completely. You will be bound by the decisions he or she makes, and you should choose a person who can handle this responsibility.

Is a power of attorney a legal and valid document?

Yes. A power of attorney is legal and valid in your state after you have completed a few simple steps, including signing the document and having it witnessed and/or having your signature notarized.

If I already have a living trust, why do I need a durable power of attorney?

A living trust covers only items in the trust. A power of attorney can protect all of your property not held in trust by authorizing someone to manage your property if you are unable to for any reason. Without a power of attorney, a court may have to appoint someone for that purpose, causing delays and additional expenses.

Is a durable power of attorney revocable?

Yes. You can revoke your durable power of attorney at any time.

Can the person to whom I grant the power of attorney change my will?

No. Even if you try to give your attorney-in-fact this power, he or she can’t change your will.

What does “durable” mean?

The word ‘durable’ means the power of attorney remains in effect even if you become mentally incapacitated. The powers you give to your agent will remain effective even though you are unable to give your agent instructions.

When does the power of attorney take effect?

The immediate power of attorney is effective as soon as you sign it before two witnesses or have it notarized.  You may give the power of attorney to your agent(s) and tell the person(s) not to use it unless you are unconscious or unable to act for yourself.  However, the agent could use the power of attorney as soon as he or she receives it.

Some people may choose to use a “springing” power of attorney which does not take effect until a specific triggering event happens, such as your incapacity.  There are several problems with springing Powers of Attorney.

If I give someone a power of attorney, does that mean I don’t have control over my money anymore?

No. When you give someone a power of attorney, you still have the right to control your money and property.  However, you are giving your agent the ability to access your money.  Your agent is not supposed to take or use your money without your permission, but there is a risk that a dishonest or unscrupulous agent might steal your money.  It is therefore very important to choose an agent you trust. You should go over the agent’s duties before you sign your power of attorney.

Can the power of attorney be used by the agent to take my money or property without my permission?

There is a risk that the agent you choose to give your power of attorney may abuse the power by taking or spending your money without your knowledge or permission.  Because the agent can use the power of attorney to access your bank account and sell your property, do not give your power of attorney to anyone you do not trust with your money or property.  It can be very difficult to get back money or property taken by the agent, because the agent usually has no money left to return.  The agent may also sell your property, or mortgage it, reducing its value.