An estate plan can include a variety of different documents intended to serve several different important purposes. Frequently, testators establishing estate plans draft wills. They may supplement their wills with trusts in some scenarios.
People may also choose to draft documents that take effect while they are still alive. Advance health care directives give individuals an opportunity to clarify their wishes regarding medical treatment in an emergency situation. People can also draft powers of attorney.
The basic purpose of a power of attorney document is to authorize another person to provide support in an emergency scenario. Some people specifically choose to draft durable powers of attorney. What function does a durable power of attorney fulfill?
Testators can address permanent incapacitation
Powers of attorney take effect in scenarios where individuals become incapacitated. In many cases, incapacitation is a temporary issue. An individual may be in a coma for a few weeks after a car crash, for example. When they recover, the document ceases to have any legal authority, and they can resume control over their own affairs.
Other times, people may become permanently incapacitated. Dementia is one example of a condition that is likely to cause permanent incapacitation. The person experiencing dementia is unlikely to ever recover enough to resume making decisions on their own behalf.
Unfortunately, standard powers of attorney offer very little support in a scenario involving permanent incapacitation. They generally lose their authority when the courts declare an individual permanently incapacitated. Durable powers of attorney include special language to ensure that they remain in effect even when the individuals who drafted the documents become permanently incapacitated and incapable of drafting legal documents on their own behalf.
Durable powers of attorney allow people to designate someone trustworthy to support them when they are at their most vulnerable. Without durable powers of attorney, individuals might be at risk of professional caregivers or family members going to court to seek guardianship. Those people could then have control over their daily life and finances.
Learning about the different estate planning tools available may help people protect themselves in circumstances in which they cannot make decisions for themselves. Durable powers of attorney are useful documents, especially for those dealing with major medical challenges or those preparing for retirement.