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What are Durable Power Documents?

Durable power documents, such as a Durable Health Care Power of Attorney allow you to designate a party to communicate your express wishes.  Durable power documents are often included in estate plans.  When a document is titled “durable,” this means that is remains effective even after you lose your mental or physical capacity.  Such a condition is rarely planned for but more common than you might think.  Even something as common as a stroke might make you temporarily incapacitated, even though you are likely to regain your capacity later.  If such a document is created while you do have capacity, the courts and hospitals will honor the decisions of your appointed agent (usually called attorney-in-fact).

Making such documents are a fairly straightforward process legally.  However, deciding whom to appoint as your agent is often one of the most difficult decision a person makes.  Appointing two people to act simultaneously is problematic in the vent they disagree on a particular decision.  Spouses or children make natural candidates for this role, but close friends are sometimes a better choice, particularly if none of the family live nearby.  It is also important to consider if that person will carry out your wishes, or if they will be too influenced by their own.

Making a Durable Health Care Power of Attorney can help prevent you from being conserved against your wishes later on.  If you lose your capacity and have not done any planning, what can happen is that Adult Protective Services can come in and have you placed into an involuntary Conservatorship.  Essentially the government evaluates your ability to care for yourself, and if you do not meet their standards, they will seize your assets and spend the money for your care.  Often this involves selling your real estate and placing you into a retirement home.  There is certainly a good and bad side to this, but the point is if you take care of yourself by appointing another to help in that situation, your wishes will be honored.

Download California Statutory Power of Attorney Download California Statutory Advanced Health Care Directive

Frequently Asked Questions about Estate Planning