Although it makes sense for most people to have a durable power of attorney, there are some things that a durable power of attorney cannot do. In some of these situations, you may need a different document in addition to your power of attorney for finances. In other situations, you may be better off relying on the conservatorship process.
If you can't think of someone you trust enough to appoint as your attorney-in-fact, with broad authority over your property and finances—and who is willing to take on the responsibility—don't create a durable power of attorney. A conservatorship, with the safeguard of court supervision, may be worth the extra cost and trouble for this purpose.
A durable power of attorney is a powerful legal document. Once you've finalized yours, anyone who wants to challenge your plans for financial management will face an uphill battle in court. But if you expect that family members will challenge your document or make continual trouble for your attorney-in-fact, a conservatorship may be preferable. Your relatives may still fight, but at least the court will be there to keep an eye on your welfare and your property.
If you expect family fights and feel uncomfortable making a durable power of attorney for finances, you may want to talk with a knowledgeable lawyer. He or she can help you weigh your concerns and options and decide whether a durable power of attorney is the best option for you.
A durable power of attorney for finances does not give your attorney-in-fact legal authority to make health care decisions for you. To make sure that your wishes for health care are known and followed, you should use can create a health care directive.
You cannot authorize your attorney-in-fact to marry, adopt, vote in public elections or make a will on your behalf. These acts are considered too personal to delegate to someone else.
If you've already given someone legal authority to manage some or all of your property, you cannot delegate that authority to your attorney-in-fact.
For example, if you become incapacitated, your attorney-in-fact will not be able to:
Nolo's Durable Power of Attorney for Finances doesn't allow you to give your attorney-in-fact permission to create, modify or revoke a trust on your behalf—with one exception. If you've already set up a revocable living trust, you may give your attorney-in-fact the power to transfer property to that trust.