The durable power of attorney is a legal document that you execute prior to your losing capacity due to illness or injury later in life that appoints an agent to handle your affairs in your place.
Formation. First, you must be competent to sign it. I routinely require a physician’s note of competence prior to the execution of the document in any case where your mental status is compromised by illness or trauma, or if you are in the hospital, nursing home, assisted living facility or under hospice care. I think you would want me to do this to ensure that no one is taking advantage of your condition.
Keep in mind, for the durable power of attorney to be an effective planning tool, it contains very broad powers enabling the holder to sell or transfer virtually all of your property, thus, it is important that you know that the person you are appointing has this authority. If you have any misgivings, then the document should not be executed.
Using the Power. One of the ways this document is routinely, and incorrrectly, used, is by nursing home staff and administrators who treat the document as a guardianship. A nursing home is not prison, and the durable power of attorney is not a commitment. While it expresses your preference of the person or persons you wish to handle your affairs, too often you will hear of someone who has mis-used it. Be assured, there are safeguards in place. If you know of a situation going on presently in the nursing home, you may contact the long term care ombudsman, who can be located through your local Area Agency on Aging (http://www.n4a.org) who can pay a visit to the nursing home to determine if the person has had his or her rights violated.
So why should I execute one?
As a practical matter, if you have a child, spouse, sibling or friend that you trust, and whom you believe will be the one taking care of you, then the power of attorney honors that person’s commitment by making their job easier. If there is not a power of attorney in place, we will have no other alternative but to seek a guardianship. This is typical in cases where you need protection: to protect you from someone else, or to protect you from yourself. It is often necessary where you have failed to execute a durable power of attorney and have lost capacity.