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Durable Power of Attorney
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Durable Power of Attorney

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What is a Durable Power of Attorney?

A Durable Power of Attorney is a document that provides authority to another person to make financial and/or health care decisions on your behalf. The person that you designate is generally referred to as the "Attorney in Fact” or as your agent.

Why should I have a Durable Power of Attorney?

It is generally advisable to have a Durable Power of Attorney for financial and healthcare decisions. Regarding health care decisions, the Attorney in Fact will determine all of your health care needs at such time that you are not able to make these decisions. For example, you could be in a comatose state that does not meet the definition of "terminal” covered in your living will. In addition, a person’s mental capacity can be inhibited as they grow older if they are afflicted with dementia, Alzheimer’s, etc. A person with these conditions may live many years at home or in an assisted living, nursing home, or other arrangement and will benefit from having a trusted family member or friend with authority to determine health care decisions, including living arrangements.

The same concerns apply to financial decisions. After a long life of hard work and saving, it is necessary to make sure that a trusted family member or friend can safeguard your assets and meet out your obligations in the event you suffer from diminished capacity. Having an Attorney in Fact for financial decisions means that person can pay bills, invest money, sell property, and otherwise transact business in your name. This can also be a layer of protection against fraud, which appears to be increasingly common with regard to elderly victims.

Who should I choose to be my Attorney-in-Fact?

The decision of whether to have a Durable Power of Attorney for health care or financial decisions is relatively simple. But who to choose as your Attorney in Fact can be more complicated. Everyone’s family and social situation is different, and the determination of an Attorney in Fact must be case-by-case. However, there are a few considerations that are paramount in nearly all cases: trust, capability, and location.

Trust is by far the most important consideration, because your Attorney in Fact will have the ability to determine, in certain circumstances, whether you live or die, where and how you live, and whether the family home should be sold or rented. It is also important that your Attorney in Fact be capable of making responsible, well-informed decisions about your health and finances. Location is also important in most cases, because it is much easier to discuss finances, visit banks, pay bills, meet with nurses at a care home, etc., when your Attorney in Fact lives in the same city. Living in the same city is not absolutely necessary, however, and location is less important than trust and capability.

It is advisable to appoint an alternate Attorney in Fact, in case the primary is deceased or unavailable to make an important, imminent decision.

How do I obtain a Durable Power of Attorney?

This pamphlet includes a Durable Power of Attorney for Health Care Decisions and a General Durable Power of Attorney. The health care document is based on the statutory form in K.S.A. 58-632, resulting in little variability between the needs of different persons. Regarding the general financial powers described in K.S.A. 58-654, choices can be made regarding which powers to delegate. These documents have been drafted in an attempt to provide a free document to a broad swathe of the public, and it is advisable to read the documents closely to determine whether they suit your individual needs. An attorney can be consulted regarding any concerns about how your health care and property decisions will be managed.

A separate spousal consent is also attached, and while this is optional, it is necessary for disposition of the homestead.

Make sure you fill out the form completely in the presence of a public notary. After you have executed the document, make copies and provide them to your primary and alternate Attorney in Fact and physicians. Keep the original living will in a safe location (e.g. a fireproof and waterproof safe in a basement) that is accessible to your Attorney in Fact.

Can I disagree with my Attorney in Fact about a health care or financial decision?

Yes. K.S.A. 58-654(g)(3) provides that your Attorney in Fact cannot force to you take or abstain from any action against your will. You may also specifically limit the powers that are delegated. In addition, you can terminate your Durable Power of Attorney at any time. Make sure to memorialize the termination in writing, communicate the termination to anyone who has or had the document, and destroy all copies of the Durable Power of Attorney to prevent confusion.

Is a power of attorney document the same as a living will?

No. A power of attorney document allows other people to make medical or financial decisions, and a living will provides specific guidance regarding your final wishes in the event you are unresponsive and suffer from a terminal condition. It is generally advisable to have both a living will and a power of attorney document. Please see the KBA Pamphlet "Living Will.”