Kanye West once said that no one man should have all that power. Fortunately for 'Ye, one man doesn't have to have all that power if he has an essential estate planning document called a Durable Power* of Attorney. (*This was most likely the "power" Kanye was referring to in his hit song, "Power".)
What does a power of attorney do?
Generally speaking, a power of attorney gives someone (your "attorney-in-fact") the ability to act for you in financial and/or medical situations. In other words, one man doesn't have to have all that power — he can share it with someone else. This authority can be limited in scope, e.g., a single real estate transaction; or it can be broad, e.g., any and all healthcare and financial decisions.
A power of attorney can also be limited in time. For example, you could provide that your attorney-in-fact can act for you only if a doctor certifies that you are incapacitated. However, this type of "springing" power of attorney can be problematic: if the attorney-in-fact has not otherwise been given the authority to access your medical records, privacy laws may prevent him from getting that documentation. And if he cannot get the documentation to say that you are incapacitated, your power of attorney would be rendered ineffective.
Why should my Power of Attorney be "durable"?
There is an important difference between a power of attorney and a durable power of attorney. Traditionally, a power of attorney was effective only as long as the person who made it was competent. If you became incapacitated or incompetent, your attorney-in-fact no longer had authority to act for you.
However, Oklahoma now provides that a power of attorney can include language that allows an attorney-in-fact to remain effective even if the person who made the appointment is no longer competent. The power of attorney endures through any incapacity of the person making the appointment. This is particularly important for elderly individuals who may show early signs of dementia or other mental or physical ailments.
Since the primary benefit of a power of attorney is that it allows someone to act for you in the event you cannot act for yourself, failing to make a power of attorney durable can defeat the whole point of the document.
Update your Power of Attorney today.
It's not easy to think about becoming incompetent or needing to rely on someone else in the future. But as Kanye wisely noted, "the clock's ticking" — so don't wait until it's too late. If you cannot make medical decisions for yourself, you should have the peace of mind of knowing someone you trust can make those decisions for you.
For more information about durable powers of attorney — or to discuss whether your power of attorney should be updated — contact the Oklahoma City estate planning attorneys at Postic & Bates for a free, no-obligation consultation appointment.
David M. Postic is an attorney at Postic & Bates, P.C. His practice focuses on estate planning, probate, real estate, trust administration, business planning, and adoption.
You can email David through our Contact Us page or by calling our office at (405) 691-5080.
[As with all our blog posts and other publications and resources, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]
