A Durable Power of Attorney (DPOA) is an essential estate planning tool to have in place when the unfortunate happens and you are left unable to communicate for yourself or handle your own affairs. If the POA is not durable, your family may have to go to court to ask a judge to appoint a guardian who will manage your assets or make medical decisions on your behalf.
A power of attorney (POA) is a legal document that gives someone else the power to act on your behalf. You are the principal and you appoint someone who will be referred to as your agent or attorney-in-fact to act on your behalf. A problem arises, however, when the principal becomes mentally incapacitated. This is because an ordinary POA becomes ineffective the moment the principal becomes incompetent or mentally incapacitated.
This poses a very legitimate concern because it invalidates the POA in those circumstances, and if the POA is invalid, then it cannot be relied upon. To solve this problem, Colorado enacted laws that allow for what we know as a Colorado Durable Power of Attorney. This is an important estate planning document as it ensures your financial affairs, such as your business, do not suffer when you are unable to act.
Durable Power of Attorney vs. General Power of Attorney
POAs have been in existence for years, whether it is a General POA, where the principal gives the agent very broad powers, or a Limited POA, where the principal only gives the agent certain limited powers, such as the ability to sign their tax returns, handle a particular financial transaction, or access their confidential records.
A DPOA is no different from a general POA or limited POA, except that it is drafted to survive the incompetence or incapacity of the principal. In other words, it is made to be durable.
Durable means that the DPOA remains enforceable should you become incapacitated. Unless a POA is durable, it will become ineffective the moment you become mentally incapacitated.
Therefore, the first requirement for a DPOA is that there is a written document, and secondly, that the document contains words which clearly indicate that you intended it to be effective after you become mentally incapacitated.
Types of Durable Power of Attorneys
There are two types of DPOAs:
- An immediate power of attorney, which is effective immediately; and
- A springing power of attorney, which begins when you become incapacitated.
What’s more, a DPOA can be issued to give the agent authority to handle both your medical and financial issues. However, it may be a good idea to create two separate documents, for example:
- One DPOA to be given to your attorney or accountant, who will handle your legal and/or financial matters(A DPOA for Finances); and
- Another DPOA to be given to someone close to you whom you trust to make medical decisions on your behalf(A DPOA For Health Care, also called a Health Care Proxy)
Note, the power granted by a DPOA should only be given to someone you trust greatly. It is also a good idea to name an alternate agent or agents, in case your first choice of agent can't act.
How Do You Get a Durable Power of Attorney?
A durable power of attorney in Colorado may be drafted by an estate planning attorney, or you may find a printable DPOA form online using any number of services. Given the importance of the document we recommend using an attorney to ensure the document is drafted correctly and your wishes are met.
It's also important to note a power of attorney is only one part of a larger estate plan. Other common estate planning documents include a will or living trust and a living will. These documents in concert will ensure your health and financial affairs are taken care of.
What Rights Does a Durable Power of Attorney Have?
A DPOA is an estate planning tool that can give your agent authority to do many things on your behalf. In fact, your agent can be granted the power to do virtually anything that you can do.
Most of the authority and powers granted in a DPOA are related to finances and medical issues. However, a good DPOA should also allow your agent to plan for elder law issues on your behalf. In other words, it should give your agent the power to make gifts and move assets around to a create family trusts that will protect your assets if you become incapacitated or need long term care.
Durable Power of Attorney vs. Living Will
A health care power of attorney allows you to appoint a proxy to make decisions when you are unable to do so. The difference is a living will makes clear your positions on certain health care matters, such as end of life decisions, which means no decisions need to be made. A health care proxy cannot override the wishes in your living will.
It's certainly more beneficial to appoint a health care proxy ahead of time, rather than allow the law to decide who makes the decisions. However, making your wishes known, and not making a proxy guess, is the best course of action. This is not only to protect you, but also to ensure family is not burdened wondering whether they made the right choice.
Colorado Estate Planning
In order to execute an Advance Health Care Directive in Colorado, you must:
In matters of importance and of a legal nature, it is always best to consult with a qualified and experienced attorney for advice. For more information regarding durable powers of attorney, or to find out about creating a durable power of attorney in Colorado, please contact us. We would be happy to assist you with an estate plan today.
By executing a DPOA, if you are injured in an automobile accident or hospitalized, and cannot handle your own affairs, you will have already named a person to act for you. By simply presenting the DPOA to the relevant third party, your agent can sell your house, pay your mortgage, sue someone, and/or choose your treating physician and make medical decisions on your behalf.
A third party is any person or institution, other than you or your agent, for instance, a vendor, company, service provider, bank, or health care provider to which your agent submits the DPOA as evidence of his or her legal right to act on your behalf.
We are happy to discuss with you the various implications of the document and how it can help you.
AUTHOR
Jonathan Feniak, Esq., MBA
Jonathan is admitted to practice law in Colorado and Wyoming. In this position, he helps business owners at nearly every level and in nearly every industry with asset protection, estate planning, and business formation. Beyond business owners, Jonathan also helps activists of all political persuasions to legally protect themselves.
