A General Durable Power of Attorney (DPOA) is an estate planning legal document that allows an appointed person or persons to act on your behalf. The appointed person is known as the attorney-in-fact. Your attorney-in-fact can make financial decisions on your behalf and generally handle all of your financial affairs. Financial matters your agent can handle include bank account transactions, real estate transactions, and the creation of estate planning documents. If is important to note that a General Power of Attorney does not necessarily become active at the moment it is signed – a springing Power of Attorney becomes active at the time of the incapacitation of the principal.
A General Power of Attorney is separate from a Health Care Power of Attorney. A Health Care Power of Attorney is a different type of Power of Attorney document which allows an appointed person to make medical decisions, access medical records, and oversee medical care on your behalf when you are incapacitated. Another important healthcare document is known as an advance directive, healthcare directive, or living will. This document sets out the types of care you want, but does not appoint an agent to act on your behalf. The document is for informational purposes for your agent to make informed decisions at end-of-life.
A Durable POA is not the same as a conservatorship. A conservatorship arises from a legal proceeding brought against a person who is alleged to be incapacitated in order to appoint someone to manage their financial affairs. A conservator has similar abilities to an attorney-in-fact, however, the conservator is supervised by the Probate Court. Conservatorship proceedings are often costly, including attorney’s fees and Court fees. Similarly, a guardianship is a court proceeding brought against a person who is alleged to be incapacitated in order to appoint someone to manage their medical decision making.
When you recognize that your loved one is incapacitated, it is important to consult an elder law attorney for legal advice to better understand your options to care for them. However, it is better to consult with an attorney prior to incapacity to create Powers of Attorney documents, so that your affairs can be handled privately, outside of Court. The Elder and Estate Planning Law Firm, and its sister entity, Quality Medicaid Care, located in St. Louis, Missouri, can create these types of documents and more.