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why do you need a durable power of attorney

I recently retired, and my children and friends keep telling me that I need to create various documents -- like a "power of attorney," or some people tell me a "durable power of attorney. " What's the difference between the two? And will these two documents be enough to ensure that someone takes care of both my finances and my medical decisions if I get so sick that I can't take care of things myself? A power of attorney is a legal document you can use to give someone else the authority to take specific actions on your behalf, such as signing your checks to pay your bills or selling a particular piece of real estate for you. If a power of attorney is durable, it remains valid and in effect even if you become incapacitated and unable to make decisions for yourself. If a power of attorney document does not explicitly say that the power is durable, it ends if you become incapacitated. But wait. There is more. There are two kinds of durable powers of attorney: a durable power of attorney for finances lets you name someone to manage your financial affairs if you become incapacitated, and a durable power of attorney for health care allows someone to make medical decisions for you if you are no longer able to speak for yourself.


Preparing these two documents, along with a health care directive -- more commonly known as a living will -- that sets out your wishes for medical care, ensures that your health and financial matters will stay in the hands of trusted people you choose.
Sadly, I often get calls from potential clients that goes like this: Dad had a heart attack, and is in bad shape. He can t take care of himself, what do we need to do? In most cases, Dad does not have a will, a durable power of attorney, or an advanced directive. And because Dad didn t think of these things before he got sick, he has put his kids or his spouse in the unenviable and costly position of having to get a Guardianship instead of already having a durable power of attorney in place.


Whats s the difference, you may ask? In short, a durable power of attorney gives your choice of person the ability to make decisions on your behalf in the event you become unable to make decisions for yourself. Sometimes it s a heart attack, or stroke. Sometimes it s a car wreck or other serious accident. But in any case, if a predetermined set of circumstances happen, and it is determined that you cannot make decisions on your behalf, you already have someone appointed to make those decisions for you. That person can be a spouse, an adult child, a relative or a trusted friend. Unlike a regular power of attorney, a durable power of attorney only goes into effect if you are disabled. Generally, your primary care physician or a team of medical professionals have to determine that you are incompetent. At any time you regain competency, the durable power of attorney can be withdrawn. Compare this with a Guardianship. In a Guardianship, someone has to petition the Court and have a Judge approve the Guardianship.


If the person becomes competent, you have to go back to Court to prove you are competent and get the Judge to sign off. This costs a lot of time, stress and money when you are sick. Also, someone may Petition the Court that you are not comfortable with, and you don t get to help decide who your Guardian is. Faulk Law Firm includes a durable power of attorney when we do a will, and an advanced directive (another important medical choice form). We usually do all three forms for less than a third of the cost of Guardianship retainer. It doesn t matter how old you are, it is important to have these things in place in the unfortunate event that something terrible happens. We know it s not pleasant to think about being injured, but it is even less pleasant for your family to have to deal with getting a Guardianship and talking to lawyers while you are sick. Call Faulk Law Firm at 580-249-9100 and get these vital estate planning documents before it is too late.

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