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What is a durable power of attorney?

What is a durable power of attorney?

Previously I reviewed the basics of South Carolina Powers of Attorney. A common question though is what is a durable power of attorney and how does it differ from a standard power of attorney?

A power of attorney is designed to remain valid until either an expiration date written into the document is reached or the principle terminates the authority. Under the law though if the principle ever loses his or her capacity or ability to terminate the authority it would automatically terminate.

For example assume a husband executes a standard power of attorney to his wife to allow her to manage the family finances when he is away on business. If he becomes ill or has an accident to where he loses his ability to comprehend his surroundings (like a coma or dementia) then the authority in the power of attorney immediately expires. Any further use of the power of attorney by the wife could be considered a fraudulent and illegal act.

To avoid this some people choose to execute what is called a durable power of attorney. This document has special language in it expressly providing for its continued authority even in the event that the principle ever loses the ability to otherwise voluntarily terminate it. A durable power of attorney can be voluntarily terminated at any time just like an ordinary power of attorney as long as the principle remains able to do so.

Durable powers of attorney can be an important part of estate planning. If someone does not have a durable power of attorney and then loses their legal competency through illness or other infirmity if a durable power of attorney was not executed during their lifetime it may require their family to pursue a conservatorship action in the Probate Court. This can result in a loss of privacy and substantial delays plus the added expenses.

The Law Office of James R. Snell, Jr., LLC, assists clients in Lexington and Columbia South Carolina with their estate planning needs including the preparation of various types of South Carolina Powers of Attorney. To schedule your appointment with our office contact us at (803) 359-3301.

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