When you come to our office to have your wills prepared, another document you should consider having us prepare is a durable power of attorney. If you become mentally incapacitated and don’t have a durable power of attorney, in order to take control of your financial and other affairs, your spouse would have to petition the court to become your legal guardian. If you have a durable power of attorney, your spouse can handle everything for you without having to go to court. The word “durable” indicates that there is language in the document stating your intention that the power of attorney remains in effect even after you become incapacitated. Without that special language, the power of attorney would automatically become null and void once you became incapacitated.

When you meet with us, we will ask you to let us know who you want to give power of attorney to. This person is called your “attorney-in-fact.” We will also ask you to name an alternate attorney-in-fact in case your first choice is unable to act for you. Another decision you will make is whether to have your durable power of attorney go into effect immediately after you sign it, or whether you would prefer to have it go into effect only after you become incapacitated. We will discuss with you the pros and cons of both.

Upon your death, your durable power of attorney ends, and your will takes over. This means that after you die, instead of your attorney-in-fact handling your affairs, your executor would take control.