Durable Power of Attorney
- Hi, my name Steve Cortes. I am an attorney and the owner of the Cortes Law Firm. Thank you for joining us today.
Our topic is durable power of attorneys: when they expire and when they become effective. So let's get started. Someone recently asked me about a durable power of attorney and my answer both surprised me and most of the audience. Now, I'll tell you why in a moment but first I wanna tell you what a durable power of attorney actually is.
So a power of attorney is a legal document that gives someone that you trust the authority to act on your behalf. Traditionally there are three types of power of attorneys. The first one is a general power of attorney that gives someone that you trust the authority to act on your behalf on almost all matters. Now there's also a limited power of attorney and that gives someone that you trust the authority to act only in certain very specific situations on your behalf. And then the third one is a medical power of attorney, which you've probably seen if you've ever been in a hospital if you had somebody in the hospital and that simply allows somebody to act on your behalf for medical decisions.
Now, traditionally a power of attorney would stop in four ways. The first is you specifically revoke the power of attorney. One day you wake up and you just revoke it. The second is if it actually has an expiration date. The third is if you become incapacitated or mentally incompetent. And the fourth one that kinda surprised everybody is if you were to die. So if a power of attorney becomes ineffective and ceases to exist, no longer exists, if you become mentally incompetent or incapacitated, then it's probably not gonna do you any good or your family any good.
So that is what a durable power of attorney is. A durable power of attorney allows someone that you trust act on your behalf even if you become mentally incompetent or incapacitated in some way that you can't make decisions for yourself.
So a durable power of attorney can become effective immediately or upon incapacity. That's called a springing durable power of attorney. But the important thing to remember and the nice thing about the durable power of attorney is that it is not affected by any subsequent disability or incapacity.
Now, I'd already hinted to it but the reason that everyone was surprised including me at the seminar and that is that is a durable power of attorney, actually any power of attorney ceases to exist, no longer is in effect when you die. Now, as an attorney, mistakenly, I thought that every one knew that. I thought everyone knew that a power of attorney expires on someone's death.
So since then I have met with many other people in my office who have downloaded a will and power of attorney off the Internet and some just didn't know and specifically asked them and I found out that they also believed that the two together, a will and a power of attorney will cover them and would protect their family when they passed away.
Unfortunately, nothing could be further from the truth. Now, the will will do you some good but they have been extremely surprised to learn that their power of attorney would cease to exist when they die. And that is why it is so important to speak with an estate planning attorney when you're thinking about doing your estate planning. If you have any questions or concerns, please don't hesitate to call us here at the Cortes Law Firm. We are here to help. Now that's all for today. We'll see you next time. Thank you for joining us.