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Durable Financial Powers of Attorney, A Vital Part of Any Estate Plan



A durable financial power of attorney is a simple way to allow another to manage your affairs. You (the “principal”) appoints someone else (an “agent” or “attorney-in-fact”) to act on your behalf. The power is granted in a written document. It can either be effective immediately or you can put language in the document that only allows its use once you are deemed incompetent by a licensed physician.

You have the choice as to how much power you give your agent. You may limit the power to one particular transaction, such as selling your home or a piece of property. Conversely the powers can be extremely broad, allowing your agent to perform virtually all the financial tasks that you perform. Generally the principal wants the agent to pay his/her bills, access bank and investment accounts or social security benefits, transfer or sell assets, insure assets and generally manage the finances.

Durable means that it survives and is effective during any incapacity you suffer and it remains in effect throughout your lifetime, unless you revoke it. When you die the power of attorney dies with you.

Remember your agent is in a position of trust (a “fiduciary”) and must do what is in your best interest, not what he or she wants to do regardless. Your agent does not own any of your property but has authority to make decisions regarding your property that benefit you.

You obviously want to appoint someone you completely trust and who has the ability to manage your finances. The choices are generally a spouse or significant other, an adult child or children, a close friend or relative or a business partner. An alternate should also be appointed in case your first choice predeceases you or is unable to serve due to illness or disability.

A durable financial power of attorney is a vital part of any estate plan. If you become incapacitated and do not have a durable financial power of attorney often times a family member must go to a Probate Judge and ask that he or she be appointed Conservator of your estate. This entails obtaining an opinion of a physician stating you are not capable of managing your affairs, a formal Court hearing and likely the posting of a bond by your Conservator. The proceeding can be very costly and time consuming.

Having a durable financial power of attorney gives you and your loved ones peace of mind. You will know that someone who is close to you and who you trust is managing your affairs.

Maine has very specific notice provisions that must be in a financial power of attorney or it is not valid. Generic forms you obtain on the internet or from retail stores often do not have the proper notice provisions. The cost of having an experienced attorney draft the document is minimal. It is something you should not put off until it is too late.

This site is made available by Fellows, Kee, Tymoczko and Pierson for educational purposes and to provide a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and Fellows, Kee, Tymoczko and Pierson.