Durable Financial Power of Attorney

The durable financial power of attorney is simply a way to allow someone else to manage your finances in the event that you become incapacitated and are unable to make those decisions yourself. The power is granted in a document, and is not only useful for you, but can really help your family in times of crisis. More precisely, it grants someone legal authority to act on your behalf for financial issues. This person’s official name depends on the state you live in, but is often referred to as your agent or as an attorney-in-fact.

What Can Someone Do With a Durable Financial Power of Attorney?

You can set the limits of your agent’s power, granting as much or as little power as you think is appropriate. When deciding whether to set limits, consider the kind of tasks your agent will likely be asked to perform:

• Paying your bills
• Paying your taxes
• Paying medical expenses
• Managing your real estate assets
• Accessing your financial accounts
• Investing on your behalf
• Collecting any retirement benefits
• Transferring and selling your assets
• Buying insurance for you
• Operating your small business
• Hiring someone to represent you

Your agent cannot do whatever he or she wants to do, but must act in your best interests. One area of potential conflict to keep in mind is in regards to paying for medical expenses. Often, people also name a medical agent who can make medical decisions for them. If your financial and medical agent aren’t the same person or disagree on medical care, the financial agent can make receiving medical care difficult.

Creating a Durable Financial Power of Attorney

Most states have simple forms to fill out to make someone your financial agent. Most states don’t require that you use these forms, but it is always a good idea to do so.

Generally, the document must be signed, witnessed and notarized. If your agent will have to deal with real estate assets, some states require you to put the document on file in the local land records office. Finally, many banks have their own forms, and while not strictly necessary, it will make the process much easier if your bank knows who your financial agent is.

When To Begin A Power of Attorney

The first distinction to keep in mind when you are granting a financial power of attorney is whether or not to make it “durable”. Durability simply means whether the power is always there, but it has significant consequences that may not be apparent. The best way to illustrate this is by example.

For example, if you grant it but don’t make it durable, then when you are incapacitated, your agent will have the power to make financial decisions as you would expect. However, if you recover, that power is now gone. This means though, that if you are then incapacitated again, that person is no longer your financial agent since the power was given but then extinguished by your recovery. So decide whether you want to make the power durable or not.

Generally, it goes into effect the second you sign it. If you do not want this, you should create a “springing” financial power of attorney. This means that the power is not granted to your agent until you are incapacitated (and certified as such by a doctor). Springing powers can be durable or not.

When Does it Stop Working?

The financial power of attorney is automatically extinguished upon your death. That means that your agent can only make financial decisions for you while you are alive and incapacitated. To deal with financial matters after your death, you need to name an executor in your will. Other ways it can be extinguished include divorce, the event that your named agent is unavailable, or if a court invalidates your document or you revoke it. Because there are many ways for the power to end that you can’t plan on, it is helpful to name alternate agents.

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If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael Anderson

People who want a lot of Bull go to a Butcher. People who want results navigating a complex legal field go to a Lawyer that they can trust. That’s where I come in. I am Michael Anderson, an Attorney in the Salt Lake area focusing on the needs of the Average Joe wanting a better life for him and his family. I’m the Lawyer you can trust. I grew up in Utah and love it here. I am a Father to three, a Husband to one, and an Entrepreneur. I understand the feelings of joy each of those roles bring, and I understand the feeling of disappointment, fear, and regret when things go wrong. I attended the University of Utah where I received a B.A. degree in 2010 and a J.D. in 2014. I have focused my practice in Wills, Trusts, Real Estate, and Business Law. I love the thrill of helping clients secure their future, leaving a real legacy to their children. Unfortunately when problems arise with families. I also practice Family Law, with a focus on keeping relationships between the soon to be Ex’s civil for the benefit of their children and allowing both to walk away quickly with their heads held high. Before you worry too much about losing everything that you have worked for, before you permit yourself to be bullied by your soon to be ex, before you shed one more tear in silence, call me. I’m the Lawyer you can trust.

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