Power of Attorney

This page describes powers of attorney for property management and other legal matters. Powers of attorney for health care decisions are described under "Advance Health Care Directive."

Estate planning involves not only planning for the event of death, but also planning for the event of incapacity. Durable powers of attorney are the best way to handle a time of incapacity in most situations.

A power of attorney is a written instrument, in which one person, called the "principal," appoints another person, called the "agent" or "attorney-in-fact," to act in place of the principal.

Sometimes authority under a power of attorney terminates when the principal becomes incapacitated. This is not a desirable situation for estate planning, for it is upon incapacity that a person most needs the availability of other persons to act for him or her.

A "durable" power of attorney is a power of attorney in which the authority conferred is exercisable notwithstanding the principal's subsequent incapacity. Therefore, in estate planning we use durable powers of attorney to provide assistance when a person becomes incapacitated.

Typically, a person selects a spouse or child to act for him or her when needed. Often more than one person is appointed as attorney-in-fact.

Without a durable power, there can be considerable disruption in the event of incapacity. Frequently it is necessary to obtain a conservatorship for the incapacitated person, but a conservatorship is a much more expensive, time-consuming, intrusive and awkward method of providing for the decisions that must be made. Unlike a conservatorship, a power of attorney does not require the involvement of a court.

Durable powers of attorney can provide the attorney-in-fact (agent) with very broad powers and also very specific powers that relate to a particular business or transaction. They are an efficient tool for managing incapacity.

Like any estate planning tool, powers of attorney might not be appropriate in every case. For example, if a senior person has no reliable people to appoint as attorney-in-fact, a conservatorship with court supervision might provide protection from misconduct by those entrusted with power that would be difficult to remedy with a durable power of attorney.

Therefore, you should not act on this advice alone, but instead present your situation to an experienced estate tax attorney who can help you decide what type of protection you should have in the event of your incapacity.