A power of attorney (POA) is a legal document that gives someone the authority to act on another person’s behalf. The person granting authority is called the principal, and the person receiving it is the agent. A POA can cover financial matters, healthcare decisions, or both. The principal decides what powers to grant and when they take effect. Some POAs are temporary, while others remain in place even if the principal becomes incapacitated. Without a POA, no one can automatically manage another person’s financial or medical decisions unless they first obtain permission from a court, which can take time.
The Difference Between a Durable and Non-Durable POA
A durable power of attorney remains effective even if the principal becomes incapacitated. This allows the agent to manage financial or healthcare decisions without court involvement. Conversely, a non-durable power of attorney ends when the principal becomes incapacitated. Non-durable POAs are often used for temporary situations, such as allowing someone to handle financial matters while the principal is out of the country. Without a durable POA, a court may need to appoint a guardian or conservator if the principal loses the ability to make decisions. This process can be time-consuming and costly.
Who Makes Decisions If You Don’t Have a Durable POA?
If someone becomes incapacitated without a durable POA in place, a court might need to appoint a guardian or conservator. This person gains legal authority to make decisions, but the process takes time and often involves significant legal fees. Family members might need to file court petitions, provide medical evidence, and attend hearings to gain guardianship or conservatorship. Additionally, if multiple relatives disagree on who should serve, the court decides. In some cases, the court might appoint a professional guardian instead of a family member. Without a durable POA, important financial and medical decisions can be delayed.
Does Marriage Automatically Give a Spouse the Authority to Act?
No. Marriage does not automatically give a spouse full authority to handle their partner’s financial or medical decisions. A spouse can access joint bank accounts, but they cannot manage accounts held solely in the other spouse’s name. For medical decisions, healthcare providers may consult a spouse, but they are not legally required to follow the spouse’s decisions. If no durable POA exists, a court might need to appoint a conservator to make financial and legal decisions. This process can take time and cause stress for loved ones. A durable POA can ensure a spouse has the legal authority to act without court intervention.
Common Misconceptions About Durable Powers of Attorney
Many people assume POAs are only for the elderly, but anyone can benefit from having one. Some also believe spouses or children automatically gain decision-making authority, but legal rights vary by state and situation. Others think a will covers instances of incapacity, but a will only takes effect after death. Additionally, a general POA does not always remain valid if someone becomes incapacitated, which is why durable POAs are necessary. Some assume all POAs cover both financial and medical decisions, but separate documents are often required.
How to Create a Durable Power of Attorney
A lawyer can help you draft a POA that follows California laws and meets your needs. They can also help you choose a trustworthy agent who will act in your best interests. Your lawyer will create a document that clearly outlines your agent’s authority, including financial, legal, and healthcare decisions if necessary. They can facilitate the proper execution of the document and advise you on updating it if circumstances change. Without legal guidance, your POA might contain errors that make it invalid when you need it most.
Contact an Estate Planning Lawyer Now
Protect your future by creating a durable power of attorney before you need one. Without it, your loved ones might face legal hurdles in managing your finances or making medical decisions for you. BoyesLegal, APC can help you draft a legally sound document that meets your needs. Contact us today to learn more in a free initial consultation.