Durable General Power of Attorney

A durable general power of attorney is a document granting the legal authority and power to a person — called an attorney-in-fact — to act on behalf of another person — called a principal — with regard to non-healthcare decisions.

For example, if a persons makes a durable general power of attorney, with no restrictions as to when the durable general power of attorney becomes effective, the attorney-in-fact appointed and empowered pursuant to the durable general power of attorney can effectively step into the shoes of the principal and do almost anything that the principal by him/herself.

Durable general powers of attorney, however, are often not effective immediately. Rather, durable general powers of attorney often become effective upon the occurrence of particular triggering events, such as the incapacity of the principal. In fact, the difference between a non-durable general power of attorney and a durable general power of attorney is that a non-durable general power of attorney becomes ineffective if the principal becomes incapacitated, while a durable general power of attorney remains effective.

Durable general powers of attorney are often used as part of estate planning to facilitate care of people, should they become incapacitated toward the ends of the their lives, without the need for court involvement, as would be required in the case of a conservatorship.

It's important to note that durable powers of attorney, need not be "general," rather, they can be limited in scope to allow for the accomplishment of a particular task.

For example, durable power of attorney may only authorize an attorney-in-fact to act on behalf of a principal for a limited period of time or with regard to a specific transaction, such as the sale of a business, etc.

A person appointed and empowered as an attorney-in-fact is called a fiduciary and is held to one of the highest standards of loyalty and care under the law. Of particular important, a fiduciary must act in the best interest of the principal.

As mentioned above, an attorney in fact appointed via a durable general power of attorney is not authorized to make healthcare decisions for the principal; rather, for healthcare and healthcare related matters, a person often needs to execute a healthcare power of attorney or advance healthcare directive.

This brief overview of some important considerations associated with durable powers of attorney is by no means comprehensive. Always seek the advice of a competent professional when making important financial and legal decisions.

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