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Durable, limited, whatever: Power of attorney is a flexible tool

Pennsylvania law stipulates that a power of attorney is presumed to be a durable power of attorney. As we explained in our Sept. 8, 2014, post, the authority conveyed with a power of attorney differs significantly from the authority conveyed with a durable power of attorney. The question is not really about what the agent (the person accepting the responsibility) can do. Rather, it is about how long the agent's authority lasts.

Generally, a power of attorney remains in effect up to the point that the principal (the person granting the authority) dies or becomes incapacitated. Under a durable power of attorney, the agent retains the authority during the principal's incapacity and even after the principal's death.

This is one reason estate planning attorneys recommend that their clients include a durable power of attorney with an advance health care directive. The health care directive gives the agent the authority to make decisions about the principal's medical care and generally includes specific instructions about extraordinary measures and continuing life support. 

The durable power of attorney can go a little further, allowing the agent to make financial decisions on behalf of the principal while the principal is unable to do so.

For example, after the principal dies, the agent may continue to handle the principal's affairs until the principal's personal representative takes over. Also, with a durable power of attorney the agent may be able to sell the principal's home to pay for ongoing care. The agent may be able to write checks or authorize bank transfers to pay bills that have nothing to do with medical care. A power of attorney is a, well, powerful document.

The presumption that a power of attorney is durable does not mean that every power of attorney has to be. We'll go into this in more detail in our next post.

Source: National Caregivers Library, "What is a power of attorney?" accessed online Sept. 12, 2014

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Larmore Scarlett LLP

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