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Why do I need a durable power of attorney?

by Steven Gnewkowski, J.D. | Contributor
August 31, 2019

If you become incapacitated, there are two basic options to determine who will control your affairs. One option is the burdensome and expensive court-supervised guardianship process in which the final say is up to a judge. A much simpler option is to utilize durable powers of attorney to appoint your own surrogate decision-makers who can act on your behalf and in your best interests.

When planning for the proper handling of your estate, it's important to consider not only what happens in the event of your death but also what happens if you become incapacitated.

Someone you trust will need to have the authority to make financial and medical decisions for your benefit, if you are no longer able to make such decisions for yourself. A well drafted estate plan takes into consideration the possibility of incapacity, and includes the documents necessary to seamlessly empower an individual of your choosing to protect your interests.

an estate planning attorney helping a couple with a durable power of attorney

An incapacitated individual is defined as an adult who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, to the extent that the person lacks sufficient understanding or capacity to make or communicate informed decisions. There are basically two ways to protect yourself, should this unfortunate circumstance befall you.

One option is for your spouse, child, or a well-intentioned friend to take the following steps:

  • Set up an appointment with your primary care physician.
  • Consult with your physician and try to obtain a letter containing both a diagnosis of your condition and an opinion on your ability to make informed decisions.
  • Seek a recommendation from family members or friends on the name of a qualified attorney who handles guardianship cases.
  • Telephone the attorney's office to schedule an appointment.
  • Take time off from work to attend the appointment and pay the attorney a hefty retainer to draft the necessary petition for the appointment of a guardian.
  • Meet with the attorney a second time to sign the petition, and pay the $150 filing fee.
  • Provide the attorney with the names and addresses of witnesses who have knowledge of the facts and can be subpoenaed to appear before the court.
  • Arrange for the guardian ad litem appointed by the court to meet with and interview you.
  • Plan to attend a hearing before the probate court in your county once a date is set.
  • Make certain proper notice has been given to all interested parties.
  • Take another day off work to drive you to the hearing before a judge.
  • Guide you to the courtroom and explain why you are here.
  • Swear to tell the truth and then take the witness stand to testify under oath.
  • Listen intently to the testimony as witness after witness relates in embarrassing detail instances illustrating your lack of good judgment and need for a guardian.
  • Take the witness stand yourself and submit to cross examination.
  • Await a decision by the court as to whether there is clear and convincing evidence sufficient to support the appointment of either a limited or a full guardian.
  • If the court grants the petition, sign and file an acceptance, and post a surety bond if required.
  • Obtain one or more certified copy of the letters of guardianship, at $12 each.
  • Begin a detailed diary of the time spent and expenses incurred acting as guardian to include in the annual report to the court.
  • Inform your physician and bank that a guardian has been appointed over you.

Or, you can avoid all the foregoing by simply signing a medical and financial durable power of attorney while you are still physically able and mentally competent, naming a person of your choice.

By proactively addressing the issue of incapacity, you not only save yourself and your family the time and expense of judicial proceedings, you demonstrate your good judgment and forward thinking. You can make those positive traits a part of your legacy by acting today.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at

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