Articles by  Alice Reiter Feld

THE “DURABLE” DURABLE POWER OF ATTORNEY

 A growing concern among many seniors is how to prepare for the possibility of becoming incapacitated.  Through the use of a Durable Power of Attorney, the family of the incapacitated person can avoid the complications, embarrassment and expense of a guardianship proceeding in order to handle any business, financial, legal and personal affairs of the incompetent.  A Durable Power of Attorney executed by an individual in advance of mental or physical incapacitation can effectively accomplish the basic objectives of guardianship without the sigma or court intervention.  Because a Durable Power of Attorney can be revoked at any time by the client it is preferred over guardianship for most individuals.

Since the Durable Power of Attorney gives very broad powers to the donee, many clients are legitimately concerned about potential misuse.  One way of protecting the client is to have the attorney hold the executed documents on behalf of the client.  Many clients execute several versions of the Durable Power of Attorney, such as first to spouse and then successively to children.  These prioritized powers of attorney can be held by the lawyer with the agreement that at some future date, under terms set by the client that when the client may become incapacitated, the documents would be available to the family. 

A practical use of the Durable Power of Attorney is to permit the donee to fund a living trust already in existence.  This way if the client has forgotten to fund the trust or prefers not to, the donee of the power can do it for him anytime prior to death.  It is also possible to limit the Durable Power of Attorney so that everything must be transferred to an existing living trust.  This is further protection against abuse.

The Durable Power of Attorney is very flexible and adaptable.  The client may grant to the donee as much or as little power as he desires.  And since the Durable Power of Attorney lasts until death, revocation or court-ordered declaration of incapacity, it is indeed durable!