A Durable Power of Attorney can be an essential estate planning tool in case someone becomes incapacitated. Some durable powers of attorney, however, may not be as effective as others when it comes to estate planning. A power of attorney should always be drafted by an attorney to ensure that the document will have the intended effect.
A general power of attorney authorizes someone to act as an agent on behalf of someone. The person who signs the power of attorney is called the principal. Once signed, the appointed agent can conduct authorized transactions on behalf of the principal. Any authorized transactions taken by the agent are just as complete and legally binding as if they were done directly by the principal. Since the actions taken by the agent are final, it is important to exercise caution when granting someone power of attorney. At any time the principal can revoke the power of attorney. This revocation is preferably done through a written revocation drafted by an attorney.
If the principal becomes incapacitated, then a general power of attorney also becomes invalid. Only a durable power of attorney is valid in the case of the incapacitation of the principal. Under Missouri law, a power of attorney is a durable with the inclusion of specific language mandated by state law. As an added precaution, the durable power of attorney can be written to only become effective if the principal becomes incapacitated. A durable power of attorney ends upon either the revocation by the principal or the death of the principal.
Even a basic durable power of attorney can be useful in the case of the incapacity of the principal. The agent can make basic decisions and transactions including basic health care choices, selecting an appropriate care facility, and the ability to pay bills. However, these powers are limiting if more complex planning decisions need to be made.
A durable power of attorney can confer additional powers that make it a more effective planning tool. Specific powers can be granted to create and fund trusts that may be extremely helpful in preserving assets in order to qualify for certain government benefits. The ability to make, receive, or disclaim gifts must also be specifically granted in a durable power of attorney. Gift planning may be necessary in order to minimize estate tax obligations. The ability to change or designate a beneficiary for property that transfers upon the death of the principal, which can help avoid the estate going through probate, must also be listed. Other specific powers that must be listed include nomination of a guardian/conservator, certain health care decisions, and the ability to designate successor agents.
There are also certain powers that cannot be granted in a durable power of attorney. These include the ability to make or modify wills, the ability to force the principal to do something against their will, and the ability to go against the specific instructions of the principal made before their incapacity.
Since this is an area of the law that is governed by state law, different states may have different requirements and regulations of powers of attorney.
Please see an elder law attorney in your area to make sure your estate plan is prepared for the possibility of incapacitation.