Free Durable Power of Attorney

by Jerrold Bartholomew

The durable power of attorney is an extremely valuable estate plan document. It allows one person to designate an agent to conduct all financial affairs. These documents are typically durable meaning that the power continues through the disability of the principal (the person naming an agent). Alternatively, there can be springing powers of attorney, which only come into effect when the principal is incapacitated. Springing powers of attorney can be attractive in many ways since the principal’s assets remain untouchable while they can still be used and enjoyed by the principal. But many financial institutions will not honor a springing power of attorney. The apparent rationale goes like this: “You didn’t trust him while you were able to watch over your own affairs. Why should we trust him now?”

The durable power of attorney is clearly susceptible to abuse. When another can act with full authority on your behalf, it is entirely possible that the power will be used to make self-interested transactions or even unauthorized gifts to the agent.

But if a trustworthy agent can be found, the power of attorney can save countless hours of worry, avoid dissipation of an estate (what would happen if no one paid your heating bill over the winter?) and, most importantly, avoid the need for probate court orders to handle your affairs. The durable power of attorney is worth the modest fee charged by most attorneys but, for what it is worth, here is a blank durable power of attorney form for free.

You should understand that a free form is not a substitute for an attorneys advice. Moreover, a typical form will not allow some of the more nuanced maneuvers that are necessary for accelerated Medicaid qualification. Also, you should understand that estate recovery avoidance techniques will typically require some form of planning for after one’s death.

Nonetheless, this form will work to appoint someone to pay your electric bill when you are not able to and that is certainly worth something. You should read the warnings very carefully on the linked page and understand that reading a blog and printing out a form is no sense a substitute for consulting with an attorney. Moreover, please understand that I have posted this link to be helpful. You and I are not entering into an attorney-client relationship at this time. See the disclaimer below.

{ 4 comments… read them below or add one }

Jerrold Bartholomew March 6, 2008 at 10:21 pm

This comment seems to have been inadvertently misplaced. It is more appropriate here (and worth reading) (JEB)

Carolyn L. Rosenblatt, RN, Attorney

I am a nurse-attorney, working with a psychologist, helping with family conflicts concerning elders. Having a durable power of attorney for finances is necessary, and it is excellent planning to get one now. One thing the form you provide omits, however, is any mention of who will decide where an incapacitated elder will live and who will take care of him or her. Although the “living will” gives an agent the power to make healthcare decisions, the subject of where an elder should live when he or she cannot make decisions is the subject of many a family fight. It is good to spell out such preferences in advance, of course, but in case of incapacity, it is even better to designate one person who will make this decision for the elder. Stay at home with live-in help? Who will supervise and manage that? Go to assisted living? Skilled nursing? Money, personal preferences and availability of facilities in the elder’s area must all be considered. Given that people are living longer than ever, and that most of us will need help before the end of our lives, think of how one can prepare for these questions, and how the standard durable power of attorney falls short of doing so. Carolyn L. Rosenblatt, R.N., Attorney at Law, HelpWithElders.com

[Originally posted] Mar 6, 5:00 PM — Negative Inheritance?

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Jerrold Bartholomew March 6, 2008 at 11:35 pm

Ms. Rosenblatt,

Thank you for your thoughtful remarks. I could not agree more on the value and necessity of a power of attorney. Moreover, a simple form can only begin to demonstrate the flexibility and utility of such documents. Specialized drafting can prevent countless arguments before they start and avoid the necessity of getting a probate judge involved. I think it is in an excellent idea to incorporate one’s wishes regarding health care and living arrangements into the durable power of attorney and I encourage my clients to do just that.

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Florida Estate Planning Lawyer, David Goldman March 9, 2008 at 4:51 pm

I was curious by the posting of the “nurse-attorney”, in Florida a DPA does not allow someone to assume the roles suggested to that typically are only available with a Guardianship. In Michigan can you give an agent the right to make decisions on who you can see, where you will live, and other non financial or medical decisions?

I often find that agents try to do these under a Power of Attorney but they do not have the right to do so.

David Goldman
Florida Estate Planning Lawyer

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Jerrold Bartholomew March 10, 2008 at 8:07 pm

Thank you for your comments, Mr. Goldman. In Michigan the patient advocate and durable power of attorney are, for the most part, interchangeable with the powers of a guardianship and conservatorship, respectively. Ultimately, each document is only effective to the extent that an institution recognizes it. Furthermore, each document is subject to revocation, the procedure for which is not nearly so formal as it is in Florida. So a dissenting principal would overrule a durable power of attorney or a patient advocate, whereas a conservatorship or guardianship is very difficult to undo. But a patient advocate could specify whom the principal wanted to see or where he or she would prefer to live or be treated. Perhaps Michigan will develop greater formalities as the population here ages and the need for clearer procedures reaches the attention of legislators.

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