What is a Durable Power of Attorney

By Lane V. Erickson, Idaho Estate Planning Attorney

When it comes to estate planning, there are numerous options that a person can use to determine what they would like to accomplish with their estate planning. However, regardless of the options that are chosen, we believe that each person should have at the very least the basic estate planning documents. These include a written last will and testament, a durable power of attorney, a living will, and a healthcare power of attorney. It’s possible that a person may also need a variety of trusts, or other options to meet their needs. However, it is the basic estate planning that provides protection for and individual while they are alive, and allows them to distribute their assets, property, and money, to whoever they choose after they pass away.

For over 70 years our team of premier Idaho estate planning attorneys have assisted clients in completing their estate plans. While estate planning is unique and should be customized to fit the individual needs of each person, as described above, there are some parts of estate planning that everyone needs. At the Racine law office our Idaho estate planning team is made up of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of our attorneys are experienced and have earned the highest rankings possible on Martindale-Hubbell, Justia, and AVVO, which are all legal reporting services that provide details on the skills and abilities of attorneys.

The purpose of this article is to describe one of those basic estate planning documents that everyone should have, which is the durable power of attorney. This article describes what a durable power of attorney covers. We then discuss what a durable power of attorney does not cover. Finally, we describe why having a durable power of attorney as part of your basic estate planning is so important. Our goal in providing this information is to help you understand the importance of having a durable power of attorney for yourself.

A durable power of attorney, which I also call a global power of attorney, covers just about every aspect of your life. To make it easy to understand, I’ll simply state that a durable power of attorney covers all of your property, finances, and everything else that you would normally do for yourself while you are capable of doing it. In describing a durable power of attorney to clients, I often use the analogy of a bowl of spaghetti noodles. I tell my clients that if they take that bowl of spaghetti noodles and dump it out on the table those noodles spread out and cover just about everything.

To help my clients better understand what a durable power of attorney can do for them, I mention a few of the things that it covers. This would include your bank accounts, your investment accounts, your Social Security account, your home, your real property, your personal property such as your vehicles, your gun collection, your coin collection, as well as your bills, your creditors, your online accounts, your social media accounts, your email accounts, and on and on. The law protects you and your ownership interests in all of these things. Because of this, other individuals cannot simply step in and do these things for you unless they have legal authority to do it. This is what a durable power of attorney does.

While it is true that a durable power of attorney is comprehensive, and global, and like a big bowl of spaghetti noodles, it does not cover absolutely everything. Rather, there is one small area where your durable power of attorney is not effective. This includes the narrow area of health care and medical decisions. In this instance, Idaho requires a separate health care power-of-attorney to accomplish this.

A healthcare power of attorney is like one spaghetti noodle that covers one specific thing (health care) and that’s it. By having both a durable power of attorney, and a healthcare power of attorney, you have a plan that gives authority to some other person or people to help you make all of those decisions while you are alive if you lose the ability to make those decisions yourself. This leads us to the next section of this article which is why a durable power of attorney is so important.

When most people think of estate planning, they think of their death and who will get their stuff after they have died. However, I try to help people understand that estate planning is designed to protect them while you are alive as well as dispose of their property after they die. It’s possible that you could suffer from a stroke, or Alzheimer disease, or some other dementia or mental defect during your lifetime. If this were to happen, and you do not have a complete estate plan that includes a durable power of attorney, then your family must take additional legal steps to protect you during your lifetime.

When no durable power of attorney exists, and you can no longer care for yourself or your property, then your family is required to do a legal guardianship for you. This requires Court proceedings, a court hearing, testimony to be given, and it opens the door for many family members to declare that they are the best person to be appointed as your guardian. When family members don’t agree on who should be appointed this often leads to an expensive and difficult legal fight about who should be appointed.

When you have completed your durable power of attorney, you have decided for yourself who you want to give this power to. This avoids any fights, it avoids the costly time and expense associated with a guardianship proceeding in court, and it gives you the ability to make sure that things are being done the way that you would like.

While your last will and testament is important, it is our position that it is not the most important estate planning document you need. Rather, the most important estate planning document you need is your durable power of attorney because it could have a lasting impact on you while you are alive.

We have assisted numerous clients in completing an estate plan that has a durable power of attorney in it. If you have questions or concerns about your estate planning, and whether or not you were durable power of attorney does what you needed to do, we are confident that we can help you too!

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.