By designating a durable power of attorney, however, an individual can provide for the management of financial affairs and other matters in the event that he or she is rendered unable to act personally. A durable power of attorney is often a very broad and detailed document. To be durable, it must contain a clause explicitly stating that the power shall not be affected by the principal s subsequent disability or incapacity, or by the passage of time. Without such a clause, most state laws would probably render the power of attorney inoperative immediately upon the disability of the principal. Use of the durable power of attorney allows the principal to choose an agent rather than having the court select a guardian.
Most experts recommend a separate, statutory health care power of attorney document.
This particular instrument is covered in more detail in a separate appendix to this report, Advance Medical Directives. An alternative to a durable power of attorney is the springing power of attorney, which only becomes effective when the principal becomes incapacitated or upon some other specified occurrence. The springing power of attorney is used if a person wishes to delegate power when incapacitated, but wishes to retain it while still healthy. A springing power of attorney requires a formal determination of disability before the power of attorney will be considered operative. This can involve a short delay and extra expense.