robert w. maher
Attorney-at-Law  · Partner with the Law Firm Dyer & Maher.
Powers of Attorney

A power of attorney (POA) is a written authorization to represent or act on another's behalf in private affairs, business, health, or some other legal matter. A Power of Attorney specifies the powers you give to your agent. The powers can be limited or broad. The person authorizing the other to act is called the principal, grantor, or donor of the power, and the person authorized to act is the agent. Creating a durable power of attorney requires that you have the required legal and mental capacity to do so. If someone is already incapacitated, it is not possible for that person to execute a valid power. If a person does not have the capacity to execute a power of attorney (and does not already have a durable power in place), often the only way for another party to act on their behalf is to have a court impose a conservatorship or a guardianship. In creating durable powers of attorney, it is important that the legal requirements set forth in the law of the jurisdiction be met, or the power of attorney document may fail. The word "durable" means the Power of Attorney will still be effective even if the principal becomes mentally incapacitated. A Durable Power of Attorney must state that "this Power of Attorney shall not be affected by the subsequent disability or incompetence of the principal" or similar words.

The durable power of attorney is valid the moment the testator signs it, so selection of a trusted designee is crucial. A revocable living trust in some situations may be an even better form of protection against incapacity, as assets are transferred to the trust and a successor trustee merely takes over as trustee at the settlor's incapacity. The settlor can resume the duties of trustee once the incapacity passes. A revocable trust can include more detailed directions that aren't typically found in a durable power of attorney, making it an ideal method of planning for asset management during incapacity.