One of the essential components of a complete estate plan is the creation of appropriate safeguards to address the possibility that at some point in our lives we may become temporarily or permanently unable to make our own decisions, whether due to injury, illness, a disabling condition, a prolonged and unexplained absence, or other reasons. Without advance planning, there will be no one authorized to make financial or legal decisions, such as paying bills, buying or selling property, or defending against a lawsuit. The only option in that event would be to commence a guardianship, which means loss of control, delay, significant expense, and possible conflict among family members.

A common approach to providing this kind of protection would be a general durable power of attorney, which is a document under which a person can grant authority for one or more other persons or firms to act on his or her behalf in handling general financial and legal affairs. The person granting the authority is referred to legally as the “principal” in this arrangement, and the person empowered to act on his or her behalf is most frequently referred to as that person’s “agent.” The power of attorney is said to be “durable” because it remains effective even in the event that the principal should later become incapacitated. It is this critical feature which makes the technique useful as a way of safeguarding the principal’s decision-making in the event that he or she would later become unable to handle their own affairs.

A General Durable Power of Attorney can also be separated into two types. A “springing” power is one which names an Agent but does not actually confer authority for the Agent to act unless and until a specified procedure is followed to establish that the principal has become incapacitated, such as confirmation based on the opinions of doctors or psychologists. Most general durable powers of attorney are of the springing type. Alternately, an “immediate” power foregoes any such requirement, and simply provides by its terms that the Agent’s authority is to commence immediately, without any further conditions, at the moment the document is signed.

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