DURABLE POWER OF ATTORNEY

Everyone should take steps to plan for his or her disability. The "durable power of attorney" is a tool everyone may at sometime need. Disability strikes suddenly and unpredictably. It can occur slowly (as in various disabling diseases) or suddenly (as in strokes or automobile accidents).

In the event of disability, unless a person has a power of attorney, the option to deal with that disability is to begin Court proceedings to establish a guardianship of the person and a conservatorship of the person's property. These proceedings are expensive and time-consuming because they require Court supervision, annual reports, petitions for authority to act in certain cases, and surety bonds.

Most states, including Iowa, authorize the use of durable powers of attorney. The word "durable" is used because the power of attorney survives or "endures" a person's disability or incompetency and allows the person appointed (the attorney-in-fact) to continue to act as long as the person making the power of attorney is alive.

In some cases the power of attorney is drafted to become effective only if and when a person no longer is able to manage his or her own affairs. Thus, the person is left in complete control of his or her affairs until a disability. If disability never occurs, the durable power of attorney never becomes effective.

In other cases the power of attorney is prepared so that it becomes effective the moment it is signed. This is done when a person needs someone else to act on their behalf when they are away, or the person wants someone else to immediately help them with their financial affairs. It also is appropriate when the person's physical health is rapidly deteriorating or extensive medical treatment is imminent.

A durable power of attorney provides many advantages to a client. It is much less expensive and much more flexible than a guardianship or conservatorship. It gives the attorney-in-fact complete authority to act on behalf of the person without the intervention of any Court. It is private and requires nothing to be filed in the public records. It allows a person to decide who should act on their behalf instead of having a judge decide who will handle that person's financial affairs.

Usually a spouse is named as the attorney-in-fact, with one or more children named as an alternative in the event the first-named person cannot act.

The durable power of attorney grants the attorney-in-fact broad powers and authority to pay bills, deposit checks, invest in and renew certificates of deposit, manage other investments, continue a business, sign tax returns, and so on. These powers provide greater flexibility and make it more convenient to operate than the Court-appointed alternatives.

A power of attorney can be terminated by giving written notice of such termination to the person named as the attorney-in-fact.

-- January 2, 2002.

Back to Main Article Page

Copyright © 2010 by Brown, Fagen & Rouse. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.