The Durable Power Of Attorney; a must have document

The Durable Power Of Attorney; a must have document.
Along with a Last Will or a Revocable Trust, the Durable Power of Attorney is a must have document
when considering advanced directives. This document allows another to act on your behalf during
your lifetime. The maker of this document is called the Principal and the person to whom the powers
are given is called the Agent. You may have more than one Agent acting together or individually and
you may designate successor Agents. The Power of Attorney ceases to be effective upon the death of
the Principle.
The Durable Power of Attorney allows an Agent to act as if he or she were you. While some may think
this is important to people of advanced age only, the reality is that we all should consider this
instrument. Whether by unfortunate accident, disease or other circumstance, we may become unable
physically or mentally to take care of our affairs, temporarily or permanently. That is what the
Agent will do to the extent that you have given him or her the power to act. This instrument may
allow an Agent to access your bank accounts, pay your bills, handle loans, and otherwise take all sorts of
actions for your personal and/or financial needs but it is ineffective for the purpose of health
care decision (That will be discussed next month).
You must carefully consider to whom you give the powers as well as carefully consider the extent of
the powers you whish to give. Those powers may be limited or broad. There are very good reasons why
the Principal would want to give the broadest powers to the Agent including the power to make gifts
to others and to make gifts to the Agent.
Once properly executed, the Durable Power Of Attorney is fully effective. Therefore you may want to
keep the original document in your possession or in your attorney’s possession until it is
necessary for the Agent to have the document and act but in any event you do want the Agent to have
access to the document. So placing your Durable Power Of Attorney in your bank safe deposit box to
which only you have access would not be a good idea.
The statute governing Durable Powers of Attorney were substantially revised in 2009 and amended in
2010. While a Durable Power of Attorney properly drafted and signed prior to 2009 remains
effective, the better practice is to review your old Power of Attorney with a lawyer so that your
wishes are properly effectuated and your Agent indeed obtains the Powers which you wish to grant.
For a Power of Attorney to be effective, the document must be signed and notarized not only by you,
the Principal, but by your Agent(s) also although the document need not be signed by the Principal
and the Agent(s) at the same time.
If you choose to give your Agent(s) gifting powers that must be done on a separate document, the
Major Gift Rider. This document must not only be signed and notarized but is also required to be
witnessed by two disinterested people.
Your estate lawyer will help you craft the proper Durable Power of Attorney for you.
Howard M. Katz, Esq.