What Is Durable Power of Attorney?

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A durable power of attorney (POA) enables your elderly parent (called the "principal" in the power of attorney document) to appoint an "agent," such as a trusted relative or friend, to handle specific health, legal and financial responsibilities.

There are two types of power of attorney:

POA for healthcare: Gives a designated person the authority to make health care decisions on behalf of the person.

POA for finances: Gives a designated person the authority to make legal/financial decisions on behalf of the person.

Families should prepare these legal documents long before someone starts having trouble handling certain aspects of life. At the time of the signing, the elderly person establishing a durable power of attorney must be capable of deciding to seek assistance. For example, people in late stages of Alzheimer's disease may not be "of sound mind" and therefore unable to appoint a POA

Like a trust, a durable power of attorney can be written so that the transfer of responsibilities occurs immediately. Or, the POA can state that the POA goes into effect when your elderly parent becomes incapacitated. Until that point, the elder can choose to continue to make decisions on his/her own.

A durable power of attorney is essential because if a person becomes incapacitated or incompetent without preparing this document, family and friends will not be allowed to make many important financial decisions, pay bills or make important healthcare decisions on behalf of their parent. Nor can they do crucial Medicaid planning. Anyone who wishes to undertake these tasks would have to go to court and be officially appointed the person's guardian.

There are several ways that a POA can written, each of which enables the person who is the power of attorney to makes various, and different levels of decisions. For example, the document might say the POA has the authority to pay bills or sell certain assets. Or POA could extend to all financial decisions, including selling the family home, managing all assets, and dealing with the I.R.S.

People often balk at the thought of preparing and signing a durable power of attorney. The elder may feel as if he/she is losing independence, and this may be something that the person doesn't want to acknowledge. An equally fearsome thought is that the agent they appoint will go against their wishes.

It's essential, of course, to choose an agent wisely and to discuss the scope of the responsibility. The document can be revised or revoked at any time, as long as the person who signed it is considered competent. Otherwise, it stays in force until the principal dies. To learn more about the durable power of attorney, speak with a lawyer who has expertise in estate planning.

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87 Comments

derlan,
Is your father competent to revoke the previous POA which sounds like it is a Durable POA? If he is competent, then he can revoke it and sign one written up for you and have a certified letter sent to your sister that she is no longer the POA. At the same time, I'd also have him sign a medical POA. Otherwise if his dementia is too far advanced for him to sign anything, then you will need to go for guardianship.
Both my mother and my husband had durable power of attorney over my father who has been alcholic all his life. Parents legally separatd in NH - about 20 yrs down the road, they start living together again - moved to Florida - she owns the property but they are both on the house mortgage. Dad had brain surgery at age 84 - my mother could not get to him in case of emergency and handed over the original signed dpoa to my husband in 2010 - 77 days in hospital -77 nites my husband was there. -- After brain surgery, Dad started drinking daily and mom's response to this (they also have a marital agreement) was to kick him out - let him drive drunk to motel and then when he got sober he could go home for two days - he had no key to the house - from Jan 2011 - July 2011, Dad spent almost 15,000 on bars, motels and a Lincoln that he bought from a barmaid. He got a dui at age 85. Mom lived 20 min from jail - we live 2 hrs away - my husband drove down at 3am to post 1000 cash bond. It got worse and I found Dad a mobile home near us - address was changed - but right before, mom had kicked him out again and we found him at a microtel motel covered in urine and bleeding..........we took him to hospital where his hr was 32 - emergency pacemaker. July 18, I drove down and removed him from Hernando county to Pinellas - he slept on couch one night - next day (still in withdrawal) he kept leaving my house and I kept calling police - they finally gave him a choice to go to the va with me or they were going to put him in asst living - ended up Baker acted in Va, then went to nursing home - Mom was kept infomred of what was going on but not until he left the VA with a diagnosis of senile dementia did she decide to get back in the picture - Dad was deemed incompetant on his dui charge and state dropped charges - all this time, we had gotten attny to apply for va benefits, etc - Mom called constantly angry about her taxes - Dad by now in asst living - my husband made the mistake of telling mom the truth - that Dad was only her husband at her convenience - she pulled him out of asst living (5 star) took him to attorney to sign a poa revocation, then took him out of asst living and back up north where she placed him in a dump of an assisted living tht filed bankruptcy 11 in 2004 and has been cited for not having patients current med list and not administering meds properly. Within 3 wks Dad had major stroke and is now almost catatonic. My husband has filed for guardianship and we do have letter from Mom stating that he wanted my husband to care for him dated in Jan 2012 - the revocation was done Feb 15 - I know this is going to be a mess in court - we have an Elder Affairs attny but Mom retained the criminal defense attny (who took care of my sisters dui and the revocation) -- moms attny specializes in duis but said he would represent her. Our attny has practiced 100 percent elder law since 1972 - moms has been in practice since 2000 - Mom does not have Dad's best interests at heart but wants to retain control..........with her being DPOA, do we stand a chance?
You dad was deemed incompetant and then taken to the lawyer for revoking your husband as joint POA with your mom over your dad? Is the lawyer aware that your dad was deemed incompetent? If so, that lawyer has broken the law and has a conflict of interest in representing your mother in court. Both he and your MIL have broken the law. I think you have a better chance with your experienced lawyer than she does with one with so little experience.