Durable Powers of Attorney FAQs
Here are answers to your most frequently asked questions about Durable Powers of Attorney and estate planning. If you have additional questions not answered below, please contact us.
Durable Powers of Attorney & Medical Directives
Yes, everyone should have a Durable Power of Attorney (DPOA) for legal, financial and property matters. If you become incapacitated and are unable to manage your finances, a DPOA will be invaluable to your loved ones. If you are incapacitated, without a DPOA your loved ones will have to go to court to be named your conservator. But if you already have a DPOA in place, you will avoid the need for a conservatorship (the same way a living trust avoids probate). Have an experienced estate planning attorney prepare your DPOA.
A “Springing Durable Power of Attorney (DPOA)” only takes effect upon a doctor’s declaration of your incapacity (which means you lack the cognitive ability to take care of your affairs). Until your DPOA agent has a written declaration from a doctor, your Springing DPOA does not take effect. An “Immediate DPOA” is exactly what you think it is – it takes effect immediately upon signing and does not require a doctor’s written declaration to take effect, which means your DPOA agent can act on your behalf immediately regardless of your incapacity.
In California, the document that names an agent to make your medical decisions is called an “Advance Health Care Directive (AHCD)”. In other states, this document is often referred to as a “Living Will” or “DPOA for Health Care”. If you live in California you should have AHCD, which is the document that allows you to name an agent for health care decisions and designate your health care and end-of-life decisions. If you do not have an AHCD and you are unable to make medical decisions for yourself, your loved ones will need to go to court and be appointed the conservator of your person.
If you become incapacitated you should already have your Durable Power of Attorney (DPOA) and Advance Health Care Directive (AHCD). You DPOA allows your agent to manage your legal, financial and property matters while your AHCD allows your agent to make medical decisions for you. If you do not have a DPOA and AHCD and you become incapacitated it will be too late to create these documents and it will be necessary for your loved ones to go to court to be named your conservator. Having a DPOA and AHCD already in place will avoid the need for a conservatorship.
