A durable power of attorney can be one of the most important documents that you make as part of your incapacity plan or your estate plan. A durable power of attorney can give you the maximum amount of control over your future, even if something bad happens to you and you become unable to communicate your own wishes or make decisions on managing your own affairs. 
You need to create a durable power of attorney before something happens to you. If you don’t, the consequences for your family, assets, and legacy can be serious. Contact Unsworth LaPlante, PLLC today to find out more about why you need a durable power of attorney, as well as to learn how to create one and what happens if you do not have one.
What is a Durable Power of Attorney?
A power of attorney is a grant of authority. When you create a power of attorney (POA), you create a legal document that allows an agent or attorney in fact to act on your behalf. The agent is treated as if they were you. If they sign a contract as your agent, you are bound by that contract.
To be legally valid, the power of attorney has to be created in accordance with rules set forth in Title 14, Chapter 123 of the Vermont code. There are different kinds of powers of attorney allowed under the Vermont code, including a limited power of attorney which transfers authority to an agent only for a particular purpose. However, general powers of attorney are frequently used for incapacity planning, because a general power of attorney can give an agent to act on your behalf and handle virtually all of your affairs when something happens to you.
When you make a general power of attorney for incapacity planning, you have to make it durable. If you make a durable power of attorney, it remains in effect when you become incapacitated. If your power of attorney is not durable, it will not remain in effect when you become incapacitated, which is when you need it.
Vermont Code section 3508 explains that: a “durable power of attorney is created by an explicit term in the power of attorney stating that: “This power of attorney shall not be affected by the subsequent disability or incapacity of the principal,” or similar words showing the intent of the principal that the authority given the agent is intended to be exercisable notwithstanding the principal’s subsequent disability or incapacity.”
What Happens if You Do Not Create a Durable Power of Attorney?
If you do not create a power of attorney at all, or if you create a power of attorney but it is not durable, there are serious consequences if you become incapacitated. If your power of attorney is not a durable one, the fact that it becomes ineffective upon incapacity results in you being in the same position as someone who had not named an agent at all.
When you have no agent who is given the authority to act on your behalf in the event of incapacity, no one will have authority to manage your assets when something happens to you. Your assets could be mismanaged and financial loss could occur for a period of time until someone is given legal authority to take action for you and to make decisions on your behalf. Your family will need to initiate guardianship proceedings, which can be stressful and costly. Ultimately, the court will determine who should be a guardian- and this person could be someone you would not have chosen. You don’t want this to happen to you, so it is important to make advanced plans in case of incapacity.
How Can a Burlington Power of Attorney Lawyer Help You?
Unsworth LaPlante, PLLC has extensive experience assisting clients in creating a durable power of attorney and in taking other steps necessary as part of the incapacity planning process. We will advise you on legal tools you can use, like a durable power of attorney and advanced directives for healthcare, which can help you to make decisions in advance and which can help you to ensure someone you trust is put in charge of your affairs if you can no longer speak up for yourself.
To find out more about the ration of a durable power of attorney and about what happens if you do not have one, give us a call today at (802) 879-7133 or contact us online. We’ll discuss your goals for the future and help you to make a plan for incapacity that protects you and the people you love.
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