Bolinger Law Firm, LLC – St. Louis Missouri Power of Attorney

All estate plans should contain power of attorney documents because they provide you with substantial protection during your life. Durable Financial Powers of Attorney and Durable Health Care Powers of Attorney are utilized most frequently but different variations exist. Durable powers of attorney are extremely important because they allow a nominated attorney-in-fact to engage in transactions and make crucial decisions during any period of your incapacity. The proper utilization of durable powers of attorney provides assurance that your affairs are attended to during a period of your incapacity.

Durable Financial Power of Attorney

A durable financial power of attorney, also referred to as a “springing” financial power of attorney, creates a principal-agent relationship where the principal delegates powers to the attorney-in-fact concerning the principal’s financial matters during the principal’s incapacity. The attorney-in-fact acts on behalf of the principal and legally binds the principal to matters encompassed within the scope of the durable financial power of attorney document. The principal typically delegates powers to the attorney-in-fact with respect to transactions including real estate, business, securities, banking and governmental interactions.

A durable financial power of attorney provides ease in maintaining the day-to-day financial affairs when the principal is incapacitated. Additionally, a durable financial power of attorney only provides the nominated attorney-in-fact with powers listed in the document during the principal’s incapacity. Therefore, while the principal is competent the attorney-in-fact is not authorized to act on behalf of the principal and does not have any of the enumerated powers specified in the document. Only upon the incapacity of the principal does the attorney-in-fact have the limited powers to act on behalf of the principal.

Durable Health Care Power of Attorney

A durable health care power of attorney, like the durable financial power of attorney, creates a principal-agent relationship where the principal delegates powers to the attorney-in-fact pertaining to the principal’s health care matters. The attorney-in-fact acts on behalf of the principal and legally binds the principal to the matters encompassed within the power of attorney document. The agent is delegated powers to make health care decisions including decisions related to the principal’s medical treatment, care and end of life wishes. Like the durable financial power of attorney, the durable health care power of attorney only provides the agent with the delegated powers during the principal’s incapacity.

When creating a durable health care power of attorney, it is always important accompany it with a Living Will. Call us today at (636) 386-8322 to speak with a St. Louis estate planning attorney or schedule an appointment.

Frequently Asked Questions

Can my attorney-in-fact act on behalf of me while I am competent?

If you have a durable power of attorney, your attorney-in-fact cannot act on behalf of your while you are competent. Under a durable power of attorney, your attorney-in-fact only has the power to act on your behalf while you are incapacitated.

However, it is imperative for your durable power of attorney document to contain a durability provision, otherwise your attorney-in-fact is authorized to only act on your behalf while you are competent, therefore, failing to realize the essential purpose of the durable power of attorney. Consequently, it is crucial to make sure that you understand the durable power of attorney document executed and that you consult with an estate planning attorney to ensure that your durable power of attorney document covers the instances when you want your attorney-in-fact to act on your behalf.

Why do I need a durable power of attorney?

Whereas a majority of estate planning deals with the disposition and transfer of property upon your death, a durable power of attorney provides direct benefits during your life. Durable powers of attorney provide you with comfort knowing that your financial and health care affairs are tended to if you were to ever become incapacitated. Additionally, durable powers of attorney allow for the streamlined decision-making, allowing your affairs to be conducted without the need for judicial intervention.

What happens if I do not have a durable power of attorney and I become incapacitated?

If you do not have a durable power of attorney executed and you become incapacitated, then your family members or other loved ones will have to ask the court to name someone as your guardian or conservator, as the case may be. Through the guardianship and conservatorship proceedings, a judge will name someone to take care of your financial and health care affairs. Since you do not have a say in the proceedings, it is important for you to execute a durable power of attorney prior to incapacity so that you are able to nominate an individual that you want to handle your financial and health care affairs. Not only can a guardianship and conservatorship proceeding be costly and time consuming, but the proceeding also becomes a matter of public record.

Whom should I nominate as my Attorney-in-fact?

When deciding whom you want to nominate as your attorney-in-fact, there are multiple considerations to account for. You will want to analyze the potential attorney-in-fact’s trustworthiness, organization, geographical distance, ability to understand your financial and health care affairs, and their ability to conduct your affairs according to your wishes. Furthermore, it is important to speak with your potential attorney-in-fact prior to the execution of the documents so that you will have a better understanding if it is a duty that the potential attorney-in-fact is willing to accept.

Can I name multiple attorneys-in-fact to act together?

Yes, you can name multiple attorneys in fact to act together. However, before deciding on utilizing multiple attorneys-in-fact, you need to consider how the multiple individuals interact together and whether it is truly in your best interests. Some potential problems arise when multiple attorneys-in-fact act together, such as disputes regarding the handling of your affairs and the decentralized decision- making, which can lead to a greater passage of time when decisions need to be made quickly. Therefore, it is important to understand the dynamics of the potential attorneys-in-fact and determine if it would truly serve your best interests.

What if I want someone to act on my behalf while I am still competent?

If you have a transaction where you want another person to act on behalf of you while you are incapacitated, a power of attorney (without the durability provision) will accomplish this goal. A power of attorney document grants another person to engage in transactions while you are still competent. Common areas where the use of power of attorney documents arises are real estate transactions and business transactions. If you are unable to engage in the transaction because you are out of the country or unable to attend the closing, a power of attorney document will grant another person the authority to engage in the transaction on your behalf. You limit the attorney-in-fact’s authority to a single transaction or provide the attorney-in-fact with authority to engage in a series of transactions.