What Are Durable Powers of Attorney?

San Diego Estate Planning Lawyer Explains

Video Transcript:

Vinny Casiano: 

It becomes the most important document at near the end of life. And if nothing else, to have your... Whoever you put in charge, 'cause you can't make those decisions anymore, have them free of guilt that this is what you wanted. They're not making these decisions, you've made that decision and you're directing them to do these things. It can really be helpful in these situations.

Molly Hendrickson: 

What are durable powers of attorney, and how do they differ from other powers of attorney? We're speaking with attorney Vinny Casiano about that on today's Ask the Lawyer. Vinny, thanks for joining us.

Vinny Casiano: 

Always my pleasure to be with you, Molly.

Molly Hendrickson: 

So first off, what are durable powers of attorney?

Vinny Casiano: 

Well, durable powers of attorney... The term durable is what you wanna look at there. Means that a person called the principal has created a power of attorney in which they name somebody to be their agent and to be authorized to take certain actions on their behalf for their property, their assets, their money in the bank... All sorts of different things you can put into a durable power of attorney. The term durable means that the power of attorney lives beyond the principal's incapacity. So let's give an example. Mom and dad, they create a power of attorney, they usually name the other spouse to be the agent, then they name the kids underneath that. If mom or dad then becomes incapacitated, then the kids take over and they're able to then manage the assets.

Vinny Casiano: 

And there are different ways you can do it. You can have an immediately acting durable power of attorney. You can have a springing power of attorney, which says, only if these events happen. The doctor says I can't understand my finances... You can also have one that says, right now, it's springing, but I reserve the right to sign a piece of paper that says, I wanna give it up... I wanna give up the... I wanna actually activate or put this into effect. And then you can do it that way as well.

Molly Hendrickson: 

So can you talk a little bit about the main types of powers of attorney in California?

Vinny Casiano: 

Sure. There's a uniform statutory power of attorney, which is a power of attorney that is delineated right in our probate code. It has a whole bunch of different requirements and those are valuable to use because those... If somebody doesn't accept it and you've created a uniform statutory power of attorney, then you can get attorney's fees in cost to force a third party to accept that if certain conditions have been met.

Vinny Casiano: 

And there are some really simple ones that are literally two pages long that basically say... A through... I want all the powers... And there's a whole assortment of powers that you have. And then the person just signs it. Boom. Doesn't take effect... It takes effect immediately, unless you state otherwise. But there are all sorts of... I have to say this, Molly. There are all sorts of provisions that you would think by reading just a uniform... A simple uniform statutory power of attorney that the person you appoint to be your agent can do anything you want.

Vinny Casiano: 

In fact, there's some language in it that says that my agent can do anything in my stead, but they really can't... You see, our probate code says, "Well, even though we said that the general authority granted in the power of attorney doesn't mean they can do X, Y and Z." And a lot of times, those are the things that you really want the people to be able to do when you become incapacitated to engage in long-term care planning and estate planning and tax planning at the end of your life. And if you don't have that in there because you went and got a power of attorney online or something, and you had no idea, and you just thought it would allow you to do everything, well your kind of the ship has sailed and it's... You can't do anything at that point.

Molly Hendrickson: 

So why might somebody want just a limited power of attorney as compared to the other ones? What are limited powers of attorney used for?

Vinny Casiano: 

Sure. You know what... And I've drafted several dozen of them. I'll give you a great example. A military family... Husband or wife is in the military, they're going to be leaving overseas, they're being deployed, and they're in the process of selling a house. They can give a limited power of attorney to their spouse to engage in that transaction to sell the property... So that that signature of the spouse that's deployed is not needed. There you go. Bam. That's commonly used for real estate transactions. It can be done for business transactions as well. You're giving out a limited power attorney for somebody to sign in your capacity as a managing partner, as an owner, as a sole proprietor, whatever it may be, in there, that allows that person to sign on your behalf.

Molly Hendrickson: 

So what about a medical power of attorney? If someone grants a medical power of attorney, what does this mean the agent can do? And what about end-of-life care, what decisions do they have?

Vinny Casiano: 

Wow. That's a huge chunk there Molly. So let's understand this, 'cause I see this on the internet, and people utilize these terms... In California, while there... Years ago, there used to be medical powers of attorney. What we have now is called the advanced... An advanced healthcare directive. And an advanced healthcare directive is basically a medical power of attorney where you're nominating somebody to be in charge of... To basically make healthcare decisions for you.

Vinny Casiano: 

You are also incorporating into that document directives on what to do, as far as end-of life decisions you make, as far as the different things that go on... Long-term care... Quality of life decisions. When I first started practicing, I'll be honest with you, I had the statutory forum, and I used to spend about five or 10 minutes with my clients... Oh, pull the plug if I'm in a coma... Blah, blah, blah, blah. If I'm gonna die, let me die. That kind of stuff.

Vinny Casiano: 

Now, to be honest with you, I spend 30 minutes, sometimes longer going over all the options that I think are important to incorporate into an advanced healthcare directive because it comes... It becomes the most important document at near the end of life. And if nothing else, to have your... Whoever you put in charge, 'cause you can't make those decisions anymore, have them free of guilt that this is what you wanted. They're not making these decisions. You've made that decision and you're directing them to do these things. It can really be helpful in these situations.

Molly Hendrickson: 

So what about general or durable powers of attorney, what are they used for and can they be changed once they're implemented?

Vinny Casiano: 

Sure, well, again, a durable power of attorney is just the term that's used that says this power of attorney is going to survive the principal's incapacity. So if the person that creates it becomes incompetent, the power of attorney is still valid. I'll tell you, every once in a while, I run across one of these powers of attorney that's not durable. Usually, because somebody tried to do it online, And they said, "Oh, I don't know if I want that."

Vinny Casiano: 

And then, "Oh my God," they come to me after mom or dad or whoever it was that created it, is now incompetent, and I say, "Well, it's no good anymore." And then they may have to go to court and get a conservatorship, which costs ridiculous amounts of money. So that's one of the issues.

Vinny Casiano: 

General power of attorney. Remember, I talked to you about the uniform statutory power of attorney. General power of attorney is basically a power of attorney that... Not a uniform statutory power of attorney. And those can be valuable... They call them attorney drafted powers of attorney. I use both on a regular basis, depending on the situation, what is appropriate. Sometimes I'll have more than one power of attorney for clients in specific circumstances. So it really depends. And this is why getting an attorney that understands this area of law and can advise you adequately, after listening to what your family circumstances are, what your objectives are, explaining what the law is, listening to what you say back, that's why you get an attorney to draft these things.

Molly Hendrickson: 

And Vinny, you touched on these websites that offer free or cheap documents, legal documents should you... Can you trust these?

Vinny Casiano: 

Well... Can you trust those... If you follow all the directions correctly and you understand the law. But that's it. Do you understand what the law is? Do you understand the consequences of you answering yes or no to one of these questions on these forms? Then they're supposed to create valid documents, but what I will tell you is they give a false sense of security to the people that do this.

Molly Hendrickson: 

Good idea.

Vinny Casiano: They will... They absolutely do. They think that they've got documents that say they're gonna work because of these commercials with this attractive person on TV saying, "Oh, we could do this. You don't need an attorney." And you know what, you wanna draft it... If you want an attorney, we'll get somebody that's just out of law school that doesn't know what they're doing to answer your questions. Sorry.

Molly Hendrickson: 

Good idea to hire an experienced attorney.

Vinny Casiano: 

Absolutely.

Molly Hendrickson: 

Vinny, thanks for joining us today.

Vinny Casiano: 

Sure.

Molly Hendrickson: 

And that's gonna do it for this episode of Ask the Lawyer. My guest has been Vinny Casiano. If you wanna ask him about your situation, you can call the number on your screen. Thanks for watching. I'm Molly Hendrickson for Ask the Lawyers.

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