What is a Durable Power of Attorney? How to Obtain One and Who You Should Name as Your "Agent."

A Power of Attorney is a legal instrument that allows you to appoint another person to make decisions on your behalf, should you become unable to make those decisions yourself. There are two major types of Powers of Attorney: a Durable Power of Attorney and a Healthcare Power of Attorney. Today’s blog post will focus on Durable Powers of Attorney.

What is a Durable Power of Attorney?
A Durable Power of Attorney is a legal document that allows you to appoint another person as your “agent” to make financial decisions on your behalf and handle your financial affairs should you become incapacitated and unable to handle your financial affairs on your own. The term “durable” simply means the powers granted to your agent are not terminated by your incapacity. Your agent is granted the power to act as you would be able to act in financial matters, including paying your bills and mortgage, selling your assets, obtaining loans in your name, transferring, withdrawing, or depositing funds into your bank accounts, filing your tax returns, accessing your safety deposit box(es), and more.
Many people execute all four major estate planning documents (Will, Durable Power of Attorney, Healthcare Power of Attorney, and Advance Directive) at the same time as an overall estate planning strategy.

​Who should I choose as my agent?
The agent serves in a fiduciary role, which means that the agent must act in your best interests. It is important to choose an agent whom you trust completely to handle your financial matters, should you become incapacitated. This is an extremely important designation, and you should be sure that the agent you choose is someone you know will protect you and your assets. Many people choose their spouse as their agent because they know and trust that their spouse will make wise financial decisions on their behalf. It is wise to choose a back-up agent, should your first choice agent not be able to fulfill the role.

When will my Durable Power of Attorney become effective?
Depending on your individual needs, your durable power of attorney can be written so it becomes effective as soon as you sign it, or it can become effective only when a doctor declares you incapacitated. Speak with your lawyer to help you decide which option is best for you.

How do I get a Durable Power of Attorney?
It is best to work with a lawyer who is qualified and knowledgeable regarding your state-specific laws to prepare a Durable Power of Attorney document on your behalf. The Durable Power of Attorney must be signed by you before a notary public to be valid.

Can I revoke my Durable Power of Attorney?
Yes, as long as you still have the capacity to do so, you can revoke your Durable Power of Attorney.
In North Carolina, you can revoke a Durable Power of Attorney by revoking it in writing or by burning, tearing, cancelling, obliterating, or destroying the Durable Power of Attorney for the purpose of revoking it.
If you were married to the person whom you named as agent, but then you subsequently divorced, the Durable Power of Attorney is automatically revoked upon divorce.

What do I do with my Durable Power of Attorney document after I execute it?
Inform the person whom you have chosen as your agent (and any back-up agents) that you have executed this important legal document. Discuss the Durable Power of Attorney document with your agent(s) and give them a signed copy to keep for their records. Let your agent (and back-up agents) know where the original is stored, should they need it.  

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