A Statutory Durable Power of Attorney vs General Power of Attorney: Which One Is the Best?

Despite witnessing many events in our lives, most of us do not like to contemplate situations where we can become incapacitated to make decisions not only for ourselves but for the people attached to us. For such kinds of situations, it is always helpful to have a legal pillow in place to land on.

One of these options is to have a statutory durable power of attorney. It is a kind of legal document that empowers an agent to make decisions on your behalf.

In general, most states require a power of attorney in order to allow an agent to make decisions and perform specific decisions on behalf of someone. But a statutory power of attorney is commonly used to appoint an agent to make financial decisions on behalf of someone who is either incapacitated, incarcerated, or is no longer to make decisions for himself.

However, the statutory durable power of attorney cannot be used to make medical or healthcare-related decisions as it plays an important part in making comprehensive estate plans.

If you are planning to have a statutory durable power of attorney for your estate, then it is a must to have legal representation so that your rights will be legally protected in the worst situations.

With the assistance of an experienced attorney, it would be much easier to put up a plan that is in the best interest of you and your loved ones.

The basics of Statutory Durable Power of Attorney

The basics of Statutory Durable Power of Attorney
source:forbes.com

A Statutory Durable Power of Attorney is created and accepted by the state statutes. This legal document gives a person – an agent augmented powers to make decisions in most of the estate matters. The person with the authority is called the agent and the person who appoints an agent for power of attorney is referred to as Principal. 

Once you decide to make a power of attorney, you have to decide whom you will appoint as the agent of your power of attorney, the range of powers they will be having, and the occasions and events that make the power of attorney effective. You would also have the option to make limitations and extensions for the powers the agent is granted with.

The authorities available for the agents in a power of attorney in the US may vary across states. But in Texas, the statute provides a wide range of authorities that you can choose while preparing a statutory durable power of attorney. Look at these powers to provide some or all of them to your agent;

  • Real property transactions
  • Bond and stock transactions
  • Commodity transactions
  • Business operating transactions
  • Tangible property transactions
  • Transactions related to financial and other institutions
  • Annuity and Insurance transactions
  • Trust, beneficiary, and estate transactions
  • Litigations and claims
  • Family and personal maintenance
  • Look for benefits gained from Medicare, social security, Medicaid, from any government program or after military and civil service
  • Tax matters
  • Retirement plans
  • Digital assets and all the mediums of electronic communication

No matter what range of options you choose for your agent to have the authority on, you have to specify the terms on which the agent will have the powers (immediately, after incarceration, or upon death).

Precisely, it has to be noticed here that decisions related to healthcare are not mentioned here. Medical decisions, like the type of care you will have once you become incapacitated, cannot be discussed or authorized through a statutory durable power of attorney. However, to give the power to make medical decisions for a person on the worse events would be given to a person through a separate power of attorney called Medical Power of Attorney.

A statutory durable power of attorney plays a vital role in protecting your interest in the events when you cannot make financial decisions or do estate planning for yourself. For instance, the aging parents may want to prepare a statutory durable power of attorney and authorize their child for making legal and financial decisions once they become incapacitated. 

Suppose if the parent went into dementia, the respective kid will be responsible for paying the medical bills, attending to attached legal liabilities, and handling the tax transactions (and all other terms stated in the Statutory Durable Power of Attorney).

What is the best time to assign a Statutory Durable Power of Attorney?

What is the best time to assign a Statutory Durable Power of Attorney
source:agingcare.com

One of the crucial aspects associated when setting up a Statutory Durable Power of Attorney is when someone is mentally sound. However, a power of attorney will not be accepted if it is signed by a person who is psychologically incompetent.

This is why it is important for you or for your loved ones to prepare and sign a Statutory Durable Power of Attorney when they are mentally competent and are able to do so.

Additionally, this legal document is editable and can be updated when there is a change in life like birth, marriage, divorce, or death. Because of the reason that a Statutory Durable Power of Attorney will come into effect once you become incapacitated so there’s no harm in preparing the attorney in advance.

In the situation when you become incarcerated without preparing a Statutory Durable Power of Attorney it would be too late to sign one. Once this happens, your loved ones would have to go through a lengthy and expensive legal process to request a court to appoint a new guardian for your estate.

Being practical and proactive will help your loved ones avoid the expense and you would also be sure that someone that you trust will be looking after your property with the best of your interest.

What is the difference between a durable and general power of attorney?

What is the difference between a durable and general power of attorney
source:lawschoolpolicyreview.com

The main difference between the general power of attorney and the statutory durable power of attorney is that a general power of attorney remains effective within the principal’s life like providing assistance in legal matters and a helping hand in the day-to-day tasks. Once you become incapacitated, a general power of attorney becomes void. Plus, it is not suitable for the after-life decisions because of the lack of durability or for the reason that a general power of attorney is non-durable for the duress circumstances.

When there is a durable power of attorney, this compels an agent to perform the assigned duties on behalf of a person once he or she becomes incapacitated or loses the power to make decisions. Additionally, there’s no deadline by which a durable power of attorney expires unless the principal has mentioned conditions that can put a durable POA to an end.

However, there are circumstances where a court can end a durable power of attorney. For instance, when an agent and principal get a divorce without making any mutual arrangements in a durable POA. Also, there are states where the courts take the general power of attorney as a durable POA until stated explicitly.

Not just the statutory durable power of attorney, but any other type of POA should be prepared when you are able to make rational decisions and are competent enough to do justice with your assets. Here are some other types of power of attorneys that you may consider.

Types of Power of attorneys

Types of Power of attorneys
source:elderlawanswer.com

There are different types of power of attorneys because each one of them entails a different situation and is formed depending on the current situation one may have. What are they, know about them in detail.

Non-durable POA

A non-durable power of attorney is signed for a definite period and situation generally for a specific event where a principal grants his agent authority to make a decision or some transactions. Once the transactions have been made or the principal becomes incapacitated, a non-durable POA will be ceased.

Durable Power of Attorney

A durable power of attorney has much more authority compared to non-durable power of attorney. It allows the agent to make all the financial decisions having a wide range of responsibilities which comes into effect immediately once the principal becomes incapacitated. Besides, durable power of attorney doesn’t have an expiry date; it remains durable even after the death of the principal.

Limited or special power of attorney

Limited or special power of attorney is used to perform a special bank transaction or to trade a particular estate. It is made in cases when there are urgent or emergency transactions needed and the principal is incapacitated or couldn’t meet the commitments due to illness or any other limitations. Here the agent is only allowed to perform the specific task assigned in the POA.

Medical Power of Attorney

A medical power of attorney authorizes the agent to make decisions related to medical healthcare when the principal is unable to do so for himself. This POA comes into effect after the presiding physician’s consent which allows an agent to make the crucial decisions against the principal’s health and medication.

Springing Power of Attorney

A springing power of attorney comes into effect when a certain event happens anytime in the future such as when the principal becomes incapacitated or the occurrence of an event that needed principal’s consent but he’s out of the country or for whatever reason he is unable to make the decision or act on the present time. A springing power of attorney can be both durable and non-durable and can encompass a range of authorities assigned to an agent. 

Conclusion

No matter what power of attorney you opt for granting specific powers to your agent, it always depends on the needs and circumstances of the principal. It is undoubtedly a helpful tool in assisting people in making financial, medical, specific decisions when they are incapacitated or unable to perform.

Are you looking to sign a power of attorney for yourself? It is suggested to hire an experienced estate attorney so your interest will be legally protected.

Recent Posts

Share on facebook
Share on twitter
Share on pinterest