Advance Directives - Durable Power of Attorney

There are two documents that everyone needs and these are referred to as “advance directives.” You can find examples of them on the internet and can draft them yourselves. But, because of the uncertainty of life, these are critical not so much for you, but for your family.

The first document is a Durable Power of Attorney. This is a contract, and like any contract it requires an offer, acceptance, and consideration. The offer is made by the Principal. You. The contract says I, the Principal, am offering to allow you, the Agent, to do certain things for me. That is the consideration. In other words, the contract is not a contract until you, the Agent, actually do something. So, if the Principal should pass away before the Agent does anything, then the offer can’t be accepted, because there is no offeror, nor is there any consideration.

There also has to be mental capacity, so a normal Power of Attorney won’t work if the Principal should go around the bend so to speak. The Principal’s incompetence will keep the contract from going into force. So, we created a legal fiction called a Durable Power of Attorney, meaning the contract will remain in place even if the Principal is no longer able to enter into contracts. This does not include the death of the Principal.

That contract is in place, if accepted by the Agent, until it is revoked by the Principal. There isn’t anything magic about revoking it. The Principal need only communicate that it isn’t there anymore. (It is as far as you are concerned if you don’t have notice of that communication, however.)

If you are reading a Durable Power of Attorney, however, you need to be careful to know when it is effective. Some are written that they will be effective if, as and when it is needed, and some are written that it will remain effective even after the event occurs. An example of the first is, “This power will become effective in the event I become incapacitated.” The second would be, “This power shall remain even though I may become incapacitated.”

A medical power of attorney has to be spelled out. If the power of attorney says, “I give the power to do anything and everything I myself might do,” it still doesn’t give medical power of attorney. The power would have to say, “including making medical decisions on my behalf.”

There are other tricky issues involving powers of attorney, so I urge you to speak to a lawyer about what you want. Sure, you can find one on the internet, but it might not fit what you want and if something happens where you can’t make that decision, you want someone to be able to make the decision you would make.

You might be taking a trip and get into an accident and can’t write. Who is going to do that for you? Will your bank let them write checks? Can they sign insurance forms to take care of the car? Can they make decisions regarding your house or pets? Advance directives are not just for “old people.” They are for everybody.

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