Myth or Fact? I don’t need a Durable Power of Attorney because I am perfectly capable of making decisions for myself.
This is a MYTH!
A Durable Power of Attorney (DPOA) is a document that gives a trusted person the power to make financial and business decisions on behalf of another person. A DPOA must be signed and notarized. In order to execute a DPOA, one must have the mental capacity to sign and execute legal documents. As such, this is truly a document that needs to be created and executed before it needs to be utilized. It is also important that the document contains the word “Durable” so that it is still a legal document even if capacity is subsequently lost by the creator.
Many people are weary of signing DPOAs because they give enormous power to the named Power of Attorney or Attorney in Fact. The point of executing a DPOA is so that someone can access your financial accounts and carry on any necessary business decisions when it is inconvenient for you or when you lack the capacity to do it for yourself. It is opening the doors to your entire financial life to someone else so they can step into your shoes and continue your financial business.
There is certainly risk that someone may take advantage and use the document maliciously, however, not having a DPOA in place can have even worse consequences. If something happens to you where you suddenly become incapacitated and cannot make your own financial decisions, if there is no DPOA in place, your loved ones need to go to court to get permission to access your finances. This process, called a Conservatorship, can add extra stress and much more time to an already overwhelming experience.
Having a DPOA in place can ensure that your needs will be taken care of properly if you ever lose the capacity to handle your own finances. There are safeguards within the law to ensure that a Power of Attorney acts appropriately and in your best interest. A Power of Attorney is a fiduciary and is, therefore, subject to legal ramifications, including a lawsuit, if they do not act in your best interest. An elder law attorney can talk to you in detail about what a Power of Attorney does and help you name the most appropriate person to act on your behalf if you lose capacity.
Elizabeth A. Caruso, Esq. is an attorney at Legacy Legal Planning, LLC, in Norwell, Massachusetts. She has been practicing estate planning, probate, and elder law on the South Shore for over a decade. If this article has sparked questions for you, please feel free to reach out via phone 781-971-5900 or email elizabeth@legacylegalplanning.com to schedule a time to discuss your unique situation.
