Your Durable Power of Attorney

For most people, the durable power of attorney is the most important estate planning instrument available — even more useful than a will. A power of attorney allows a person you appoint — your "attorney-in-fact" — to act in your place for financial purposes when and if you ever become incapacitated.

In that case, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservatorship, your representative may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney.

A power of attorney may be limited or general. A limited power of attorney may give someone the right to sign a deed to property on a day when you are out of town. Or it may allow someone to sign checks for you. A general power is comprehensive and gives your attorney-in-fact all the powers and rights that you have yourself.

A power of attorney may also be either current or "springing." Most powers of attorney take effect immediately upon their execution, even if the understanding is that they will not be used until and unless the grantor becomes incapacitated. However, the document can also be written so that it does not become effective until such incapacity occurs. In such cases, it is very important that the standard for determining incapacity and triggering the power of attorney be clearly laid out in the document itself. Generally, we recommend our clients execute "immediate" powers rather than "springing" powers. If you are concerned that your chosen agent will take advantage of an immediate power and conduct himself improperly or take advantage of the power prior to your incapacity, what do you think that person will do while you are incapacitated? Where such reservations exist, you may be better off without a power of attorney, where a court can in fact oversee the handling of your affairs. In most cases, this is not a concern, and the "immediate" power removes one more hurdle (proving your incapacity) which could delay the effectiveness of your power of attorney.

Attorneys throughout the country now report that their clients are experiencing increasing difficulty in getting banks or other financial institutions to recognize the authority of an agent under a durable power of attorney. A certain amount of caution on the part of financial institutions is understandable: When someone steps forward claiming to represent the account holder, the financial institution wants to verify that the attorney-in-fact indeed has the authority to act for the principal. Still, some institutions go overboard, for example requiring that the attorney-in-fact indemnify them against any loss. Many banks or other financial institutions have their own standard power of attorney forms. To avoid problems, you may want to execute such forms offered by the institutions with which you have accounts. In addition, you may want to consider execution of a revocable living trust in part to avoid this sort of problem with powers of attorney.

While you should seriously consider executing a durable power of attorney, if you do not have someone you trust to appoint it may be more appropriate to have the probate court looking over the shoulder of the person who is handling your affairs through a guardianship or conservatorship. In that case, you may execute a limited durable power of attorney simply nominating the person you want to serve as your conservator or guardian. Generally, unless there is some "good cause" as to why your nomination for the office of guardian or conservator should not be honored, the Chancery courts in Mississippi will generally honor your requested appointee if set forth in a document under oath.

Our firm, attorneys, and lawyers provides representation and handles cases practices in the following geographic areas throughout Mississippi (MS), including: Jackson, Clinton, Brandon, Madison, Ridgeland, Pearl, Richland, Florence, Magee, Mendenhall, Vicksburg, McComb, Brookhaven, Magnolia, Hazlehurst, Byram, Crystal Springs, Pelahatchie, Morton, Forest, Lake, Meridian, Canton, Edwards, Raymond, Utica, Flora, Bentonia, Yazoo City, Pickens, Goodman, Durant, Lexington, Greenville, Greenwood, Port Gibson, Lorman, Fayette, Natchez, Meadville, Monticello, Prentiss, New Hebron, Columbia, Tylertown, Hattiesburg, Purvis, Ellisville, Sandersville, Heidelberg, Bay Springs, Decatur, Raleigh, Newton, Union, Carthage, Philadelphia, Louisville, Kosciusko, Laurel, Gulfport, Biloxi, Bay St. Louis, Long Beach, Moss Point, Pascagoula, Ocean Springs, Pass Christian, and throughout Hinds, Rankin, Madison, Warren, Simpson, Scott, Newton, Jasper, Smith, Lauderdale, Kemper, Neshoba, Leake, Attala, Holmes, Yazoo, Covington, Lawrence, Jones, Wayne, Lincoln, Franklin, Jefferson, Adams, Pike, Amite, Wilkinson, Jefferson, Pearl River, Hancock, Harrison, Jackson, Forrest, and Lamar Counties, as well as Choctaw Tribal Court.