Durable Power of Attorney

The Durable Power of Attorney is a tool which should be part of every elder American's legal plan. The Durable Power of Attorney is a document that allows a person, called the principal, to grant another person the ability to do legal transactions on his or her behalf, acting as the principal's agent.

For example, take the case of John and Mary Smith and their son Robert Smith. John and Mary Smith also have a very close friend named Keith Mitchell. The John Smith Power of Attorney could name Mary Smith, Robert Smith and Keith Mitchell as his agents. Let us assume that in the John Smith Power of Attorney Mr. John Smith named Mary Smith, Robert Smith and Keith Mitchell as his agents. In this John Smith Power of Attorney Mr. John Smith is the principal and Mary Smith, Robert Smith and Keith Mitchell are the agents. Any person, even if they are not a family member, can be your agent as long as they are an adult. In this example, the agents were John Smith's wife, Mary Smith; John Smith's son, Robert Smith; and John Smith's close friend, Keith Mitchell.

The general rule is that a Power of Attorney will no longer be valid if the principal becomes disabled or incompetent. The New York General Obligations Law, which is the law regarding Powers of Attorney, does provide an exception that allows the principal to sign a Power of Attorney that will still be valid even if the principal later becomes disabled or incompetent. This type of Power of Attorney is referred to as a Durable Power of Attorney. Thus, the Durable Power of Attorney allows the principal to name an agent who will still have authority to make decisions even if the principal later becomes disabled or incompetent. Recall that in our example above regarding the John Smith Power of Attorney, Mr. John Smith is the principal, while Mary Smith, Robert Smith and Keith Mitchell are the agents. If Mr. John Smith becomes disabled or incompetent, Mary Smith, Robert Smith and Keith Mitchell can still act as John Smith's power of attorney. It is extremely important that all Americans have a Durable Power of Attorney, because one can become disabled or incompetent at any time.

Once a Durable Power of Attorney has been signed, it is possible then for the agent to exercise any of the powers granted in the Power of Attorney when ever necessary without any need to go to court. In cases where a mother or father has become disabled or incompetent a valid Durable Power of Attorney will allow that person's Elder Law attorney to put into effect certain planning recommendations without delay, thereby preserving the assets for the family and maximizing any benefits allowed under the Medicaid Law.