A Durable Power of Attorney is an agreement between an individual (called the “Principal”) and designated agent to act on behalf of that Principal. A Durable Power of Attorney is effective upon execution; however, it is important to note that an agent cannot act contrary to the principal’s wishes as long as the principal has capacity to act on their own, and must act only for the benefit and for the best interest of the principal when the principal lacks capacity to make their own decisions. Although standard forms are available, this is a powerful document that should be drafted carefully to help meet the individual client’s needs. A poorly drafted Durable Power of Attorney may not provide the designated agent with the powers needed to fully act on behalf of the principal, leaving the agent and/or family in a position to seek guardianship. Further, a poorly drafted durable power of attorney can also cause unintended tax consequences for the designated agent. It is highly recommended that you seek an attorney who understands the impact of these documents and can draft a Durable Power of Attorney that will meet your needs and avoid unintended consequences.
