Durable Power of Attorney (DPOA)
A durable power of attorney, or DPOA, is a written document that you can use to appoint someone else to handle your affairs on your behalf. You can draft it to go into effect immediately or only after you become incapable of making such decisions for yourself. Anyone can create a DPOA, so long as they are at least 18 years of age and have the mental capacity to understand the powers they are giving someone else. Though you can draft a DPOA yourself, many people use a DPOA lawyer to make sure the document does what they intend and complies with the law.
Under a DPOA, the person making the appointment is the “principal.” The person receiving the power is the “agent” or “attorney-in-fact” (though this person does not have to be a lawyer). The individual you appoint to serve as your agent should be someone you trust entirely to make medical and financial decisions that can materially affect your life. You can change or revoke a DPOA any time before you become incapacitated, but because it is “durable,” it will remain in effect after you become incapacitated. A DPOA is only effective while you are alive, and so you cannot rely on it to handle your affairs after death. For that, you need a will or a trust.
There are two main types of DPOAs—medical and financial.
Medical Power of Attorney
A medical power of attorney empowers someone else to make healthcare decisions for you if you are unable to speak for yourself. This can include choosing a particular doctor or healthcare facility, switching health care providers, authorizing a certain medical or surgical procedure, or moving you into a nursing home facility. You can also authorize your agent to make decisions about how much treatment you should receive should you end up in a persistent vegetative state or in a coma with no chance of recovery (you should be sure to coordinate this authorization with your living will).
You can also limit the decision-making powers of your agent by providing instructions on which health care or nursing facility you wish to enter, by requiring that at least two doctors agree before any treatment is undertaken or withdrawn, or by specifying that you do not wish for any life-sustaining measures to be taken if you are in a coma and considered “brain dead.” You should make sure your loved ones know you have a DPOA and know who you have designated as your agent.
Financial Power of Attorney
Another important DPOA that every adult should have in place concerns your financial affairs. As with your medical DPOA, you have a lot of flexibility to grant your agent broad or limited powers to manage your finances. For example, you may wish to only allow your agent to pay your bills or to sell your home. Or you may wish to authorize your agent to sell any assets, transfer titles, open bank accounts, withdraw funds, create trusts, buy insurance policies, designate beneficiaries, etc. In Colorado, you should sign your financial DPOA in front of a notary.
Your agent has a fiduciary duty to act in your best interests and can be held liable for decisions that betray that duty. Be sure to appoint someone who is familiar with you and your assets, and who has the financial acumen to properly manage your financial affairs.
Consult the McKenzie Law Firm
Dan McKenzie is a Denver DPOA lawyer who can advise you on creating a DPOA for your medical and financial affairs or who can counsel you should you suspect a designated attorney-in-fact of breaching his or her fiduciary duties. Call the McKenzie Law Firm today to discuss a DPOA for you or a loved one and to discuss any issues regarding an agent’s legal duties.