Durable Powers of Attorneys — Problems and Solutions

Linda S. Whitton (Professor of Law, Valparaiso University School of Law) has recently published her article entitled Durable Powers as an Alternative to Guardianship: Lessons We Have Learned, 37 Stetson L. Rev. 7 (2007).

Here are some excerpts from the article’s introduction and conclusion:

The durable power of attorney, widely used in every jurisdiction, is a statutorily sanctioned vehicle for creating an agency relationship that survives the principal’s incapacity.  The Uniform Probate Code first included durable power provisions in 1969 to offer an inexpensive method of surrogate decisionmaking.  Although originally promoted as beneficial for those whose modest assets did not justify pre-incapacity planning with a trust or post-incapacity property management with a guardianship, the durable power of attorney is now used by both the wealthy and non-wealthy for incapacity planning as well as convenience.

After more than three decades of using durable powers of attorney, we have the benefit of common experiences, best practices, and legislative trends to inform our assessment of durable powers as an alternative to guardianship. This Article examines that aggregate experience to distill important lessons not only for the use of durable powers, but also for legislative reform to improve their efficacy as a means of surrogate property management. * * *

Examination of caselaw and legislative trends with respect to durable powers confirms that the power of attorney still offers significant advantages as a low-cost, flexible, and private alternative to guardianship. Nonetheless, these advantages come with corresponding risks. The trustworthiness of the agent, the willingness of third persons to accept the agent’s authority, and the cooperation of the incapacitated principal’s family are key components to the successful use of durable powers. Our collective experience with powers of attorney also demonstrates that certain planning strategies and legislative reforms can enhance the usefulness of durable powers while at the same time provide a measure of protection for the principal, the agent, and those who deal with the agent. Maintaining this delicate balance must be the continuing goal for legislators and practitioners if durable powers are to remain a viable alternative to guardianship.