How to Write a Durable Power of Attorney

Co-authored by Clinton M. Sandvick, JD, PhD

Last Updated: March 19, 2024 Approved

This article is written for persons living in the United States. Powers of Attorney in other jurisdictions do different things and have different rules and requirements. Please make sure you are consulting the laws of your own jurisdiction if you are not living in the United States.

A power of attorney form is a legal document where a person gives his decision-making rights to another person if he is not able to make those decisions. This is sometimes necessary due to illness, accidental injury, or any event where someone is temporarily unable to make decisions. These situations, such as a debilitating car accident that results in a coma, may force you to take control over your loved one's estate or life choices for a short period of time. With some consideration of some factors, you can take some steps to create a durable power of attorney that will work for you and your loved ones.

Part 1

Part 1 of 4:

Deciding If You Need Power of Attorney

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1
Determine the terms of the power of attorney. The person that is given the decision-making ability is the agent, also known as the attorney-in-fact . The person who gives up his ability to make decisions is known as the principal . A durable power of attorney can be used if the principal is unable to handle all or part of his affairs for a long period of time. You may also need a durable power of attorney if it is suggested that one is needed by the principal. A durable power of attorney goes into effect immediately. It continues to be valid when the person who asks for it is no longer able to make decisions. ^{[1]
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- A general power of attorney does not remain in effect after someone is unable to make decisions for themselves. If the word durable is not specified, the power of attorney is voided when the person who granted it becomes incapacitated.
- You can also get a springing durable power of attorney. This will not go into effect until the principal can no longer make his own decisions. With this process, the person must be proven to be unable to make his own decisions before the power of attorney will go into effect. ^{[2]
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- You can create a durable power of attorney for health care, which grants the agent the full rights to take care of all the principal's medical decisions when he can no longer do it himself. This includes all medical decisions from going for a check up to surgery decisions. These are often accompanied by a Living Will.
- You can also create a durable power of attorney for finances, which gives the agent full control over the principal's finances. This includes everything from opening the mail and depositing checks to filing taxes. ^{[3]
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- You can also write a full durable power of attorney that gives all of the principle's rights away, both financial and health related, to one agent. ^{[4]
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2
Talk to your loved one. The simplest way to get power of attorney is to do so with the agreement of the person who may need to turn over his decision-making rights. If your loved one is terminally ill, a time may come when he won't be able to make financial or medical decisions. He may decide to willingly sign over power of attorney to you. If you know that your loved one might need to give you power of attorney, discuss it with him. Let him know you care and you have his best interests in mind.
- Make sure he understands what it means to sign over power of attorney. This includes what types of decisions will be made for him. ^{[5]
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- For example, a principle may want to draw up a durable power of attorney if he is diagnosed with dementia. In this case, the principal may want to set up a contract while he is still in a level state of mind and appoint his daughter as agent in order to protect himself in the future when he can no longer remember everything.
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3
Consider alternatives to a power of attorney. For someone to grant you power of attorney, the person must be of sound mind. If your loved one is not mentally sound, but has granted power of attorney to you in a Living Will, you don't need to file for power of attorney. If your loved one is not mentally sound and has not granted power of attorney, you may need to get adult guardianship, also known as conservatorship, to take care of his affairs. ^{[6]
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- You must go to court to ask to be appointed as a conservator or guardian. To become a guardian of someone, the principle much first be labeled legally incompetent by the court. That is, he must not be able to meet his own basic needs. ^{[7]
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  Elder Law: Cases and Materials, LexisNexis, Fifth Edition (See chapter 9, “Guardianship”)}
- You need to go to the state circuit or district court of the county where he lives. These courts make the decisions for the guardianship of those that live in the area.
- Your situation will be assessed based on your eligibility to serve as guardian, his inability to take care of himself, and the lack of other possible fitting options to guardianship. ^{[8]
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