The Constitution of the United States and the privacy laws that have emanated from its protections guarantee the right of each competent adult to act in her own behalf regarding all personal and property matters. It is essential to establish a plan for others to make personal business and financial decisions for you if you become unable to do so for yourself. Such authority may be given in a variety of ways, with the Durable Power of Attorney being a recommended basic component of every good plan. Other methods include joint ownership of assets, trusts and representative payee status for Social Security payments.
A. Durable Power of Attorney (“DPOA”). A durable power of attorney is a written document in which the “principal” appoints another as the principal’s agent (or “Attorney-in-Fact”) and gives that agent the authority to carry out the principal’s non-medical affairs with individualized directions stated in the DPOA.
- Durable. If the document contains a statement to the effect that “This General Power of Attorney shall not be affected by the subsequent disability or incompetence of the Principal, or the lapse of time,” then it is considered “durable” and the Attorney-in-Fact will continue to have the power to act for the principal even after the principal becomes incapacitated.
- General or Limited. The DPOA may give the Attorney-in-Fact all the powers over the principal’s affairs and property that the principal would have (a “general” DPOA), or it may be limited to certain powers, such as the power to sell real property or create a trust for the principal (a “limited” DPOA). And Mississippi law requires that someone other than the principal’s spouse must be named as the agent to sell the principal’s residence property.
- Immediate or “Springing”. It may allow the Attorney-in-Fact to act as soon as the principal has signed the document (an “immediate” power) or it may state that the Attorney-in-Fact may only exercise the powers after some future event, such as one or more physicians certifying that the principal has become incapacitated (a “springing” power). An immediate DPOA does not take away or affect the principal’s right to continue to make such decisions or control her property and affairs as long as she has capacity to do so.
- Personalized. A DPOA should be customized for the principal’s personal circumstances, and is best done by an experienced elder law attorney who understands these issues. A power of attorney that lacks important statements of intended powers or that unduly restricts certain types of powers will hamper the actions of the agent when it becomes necessary to use it. For instance, your spouse cannot use a power of attorney to deed away your interest in your home if you become incapacitated, but another family member may be named in the DPOA to have authority to do so.
- Designation of conservator. Mississippi law states that a court-appointed conservator for the principal may revoke the principal’s power of attorney and that the agent under the power of attorney is subject to the conservator’s authority. The laws pertaining to powers of attorney also state that you may designate, in the power of attorney, the person(s) who are to be appointed as conservator if a conservator is required; and the court must abide by this designation unless obviously not in your best interest.
The primary reasons for a DPOA are: (a) to plan for a substitute decision-maker in the event of your future incapacity; (b) to personally select the person(s) who may be appointed conservator for you if required (rather than having the Court approve someone undesirable); and (c) to authorize the Attorney-in-Fact to take necessary actions to conduct your affairs and protect your assets as part of your estate plan. If you become incapacitated without a DPOA, a court will have to appoint a conservator to handle your affairs and assets.
If we can assist you and your loved ones, please contact one of the experienced MS estate planning attorneys at Courtney Elder Law Associates. We will be happy to answer your questions and help you through the process.