The Durable Power of Attorney

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.

A Durable Power of Attorney is a legal document that allows you to give legal authority to another person to handle your affairs. If you become mentally incapacitated and don't have a Durable Power of Attorney, before your spouse or anyone else you trust can take control of your financial and other affairs, they would have to petition the Court to become your legal guardian. This process is expensive and time consuming. However, if you have a Durable Power of Attorney, the person you appoint 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 will remain valid even after you become incapacitated. Without that special language, the Power of Attorney would automatically become null and void once you became mentally 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 "Agent." We will also ask you to name an alternate Agent in case your first choice is unable to act for you. Another decision you will make is when your Power of Attorney will go into effect. It can become effective immediately after you sign it, in which case your Agent has the authority to act despite the fact that you're still capable of handling your own affairs. Or, we can indicate that it only becomes effective if you become mentally incapacitated, which means that you are unable to manage your own affairs.We will discuss with you the pros and cons of both.

In your Power of Attorney, you can give your Agent various powers, including general authority in the following 14 categories:

Your Agent also has certain obligations under Delaware law. These include the duty to:

  • act in accordance with your expectations and in your best interest
  • act in good faith
  • act only within the scope of authority you have granted
  • keep in regular contact with you if at all possible
  • act loyally for your benefit
  • act in a way to avoid a conflict of interest
  • act with care, competence, and diligence
  • keep a record of receipts, disbursements, and all other transactions
  • cooperate with the person you appoint to make health-care decisions for you
  • act in a manner that is consistent with your Will

Upon your death, your Durable Power of Attorney ends, and your Will takes over. This means that after you die, instead of your Agent handling your affairs, your Executor takes control.