Understand the Issues
Creating a durable power of attorney ensures that someone you trust (usually called your "agent" or your "attorney-in-fact") will be on hand to manage the many financial tasks that will arise if you become incapacitated. For example, bills must be paid, bank deposits must be made, and someone must handle insurance and benefits paperwork. Many other matters may need attention as well, from handling property repairs to managing investments or a small business. In most cases, a durable power of attorney for finances is the best way to take care of tasks like these.
Decide How Important Avoiding Conservatorship or Guardianship Proceedings Is To You
If you don't have a durable power of attorney and you become incapacitated, your relatives or other loved ones will have to ask a judge to name someone to manage your financial affairs. Depending on where you live, the person appointed to manage your finances may be called a conservator, guardian of the estate, committee, or curator. Conservatorship or guardianship proceedings can be expensive and embarrassing. Your loved ones must ask the court to rule that you cannot take care of your own affairs. Court proceedings are matters of public record; in some places, a notice may even be published in a local newspaper. And if relatives fight over who is to be the conservator or guardian, the proceedings will become disagreeable, sometimes downright nasty. All of this causes costs to mount up, especially if lawyers must be hired.
Does Being Married Preclude the Need for a Durable Power of Attorney?
You may not think that you need a durable power of attorney if you're married, if you've put most of your property into a living trust, or you hold it in joint tenancy. But the truth is that in all of these situations, a durable power of attorney can make life much easier for your family if you become incapacitated. If you are married, your spouse does have some authority over property you own together -- for example, to pay bills from a joint bank account or sell stock in a joint brokerage account. There are significant limits, however, on your spouse's right to sell property owned by both of you. For example, in most states, both spouses must agree to the sale of co-owned real estate or cars. Because an incapacitated spouse can't consent to such a sale, the other spouse's hands are tied. When it comes to property that belongs only to you, your spouse has no legal authority without a durable power of attorney.
Do You Need a Durable Power of Attorney When You Have a Revocable Living Trust?
A living trust isn't a complete substitute for a durable power of attorney, but it can be helpful if you become incapable of taking care of your financial affairs. That's because the person who you name as the successor trustee of you trust will have the authority, in most cases, to take over management of the trust property if you become incapacitated. However, the successor trustee has no authority over property not held in the trust. Few people transfer all their property to a living trust; most transfer only assets that are expensive to probate, such as real estate and valuable securities. A durable power of attorney ensures that someone will be on hand to take care of other property, as well as day-to-day financial tasks.
What About in a Joint Tenancy Situation?
With joint tenancy, more than one person can own property together. When one owner dies, the other owners automatically inherit the deceased person's share of the property. But if you become incapacitated, the other joint tenant owners have very limited authority over your share of the joint tenancy property. By contrast, with a durable power of attorney, you can give your agent authority over your share of joint tenancy property, including real estate and bank accounts.
Understand When you Might NOT need a Durable Power of Attorney
The expense and intrusion of a conservatorship or guardianship are rarely desirable. In a few situations, however, special concerns justify the process. If you can't think of someone you trust enough to appoint as your agent, with broad authority over your property and finances, don't create a durable power of attorney. A conservatorship or guardianship, with the built-in safeguard of court supervision, may be worth the extra cost and trouble. A durable power of attorney is a readily accepted and powerful legal document. Once you've finalized yours, anyone who wants to challenge your plans for financial management will face an uphill battle in court. But if you expect that family members will challenge your document or make continual trouble for your agent, a conservatorship or guardianship may be preferable. Your relatives may still fight, but at least the court will be there to keep an eye on your welfare and your property.