Durable Powers of Attorney and Other Legal Methods of Addressing Incapacity
- posted: Nov. 30, 2021
- Estate Planning
At any time, a serious illness, car crash or other accident could leave you incapacitated for months or even years. This is why completing a durable power of attorney is important, regardless of your age or health circumstances. By having a durable power of attorney in place, you can ensure that critical decisions will be made by a trusted person whom you have specifically designated to act on your behalf should the need arise.
A durable power of attorney is a legal instrument that appoints another individual as the principal’s agent in the event that they cannot make decisions for themselves. These grants of authority are referred to as durable because they can go into effect at any time if a person becomes incapacitated and, unlike other powers of attorney, their duration is not limited. The agent designated in the instrument is a fiduciary and has a legal obligation to act in the principal's best interests. If no power of attorney is in place, the court may appoint a guardian or conservator to assume legal authority over your financial affairs and healthcare treatment.
You can establish a comprehensive durable power of attorney or one limited to decisions on financial matters, medical care or mental health treatments. In addition to a durable power of attorney, you may also consider specifying your wishes in a living will. This is a type of advance directive that states your preferences regarding life-prolonging medical interventions and the type of end-of-life treatment you want or don’t want.
In order to be valid and enforceable, a power of attorney must meet certain statutory requirements under Arizona law. It must be in writing, clearly identify an agent, and be notarized. The signing must also be witnessed by someone other than the notary, the agent, and the agent’s spouse or children. While a power of attorney can include a date of termination, it can be indefinite if a date is not specified.
Without an enforceable power of attorney, you likely won’t have any control as to who handles your affairs if you are unable to for some reason. A court can appoint a guardian and give them legal authority to act on your behalf. While a guardian has a fiduciary duty to try make decisions on medical treatment as you would, it could be very hard to determine your preferences without prior planning. Likewise, a conservatorship could be created so that someone would be in charge of your financial matters.
The Law Firm of Joseph M. Udall, PLC works with clients throughout Mesa and the surrounding areas to draft durable powers of attorney and estate planning documents to them keep control over vital personal concerns no matter what occurs. Call 480-500-1866 or contact us online to schedule a consultation at our Mesa, Arizona office.