There’s no doubt that a Durable Power of Attorney (DPOA) is an important part of your estate plan. Ideally, if it’s well crafted and updated, a DPOA will protect both you and your assets by enabling someone you have deep trust in, to take care of both your healthcare decisions and decisions concerning your estate.
Simply put, if something happens to you where you cannot manage yourself and/or your financial affairs, a DPOA allows a pre-designated person to do it for you.
However beneficial a DPOA is in your estate plan, it doesn’t go into effect until there’s a determination of (in)competence. Incompetence being the trigger of a DPOA, it’s important that you know what that term actually means, and how you can help to define it in your own plan.
Incompetence Defined for Durable Power of Attorney
For the purposes of a Durable Power of Attorney, the idea of incompetence can also be looked at as a determination of whether or not a person is competent. If they are not competent, then they can be said to be incompetent. However, without getting too far into the weeds on this, being a legal term, we have a lot to fall back on.
In Washington State, without a DPOA a court may appoint a guardian for you if you were to meet the any of the following criteria for incompetence (incapacity).
You have a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.
You have a significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.
You are under the age of majority as defined in RCW 26.28.010.
You can read more about the ability of a superior court to determine incompetence, here. But generally speaking, you might meet a definition of incompetence if you lack the physical, mental, emotional, or legal capacity to take care of yourself or your financial affairs.
So, All This is Already Law, Why Does it Matter if I Get a DPOA?
The law gives pretty detailed criteria for how to determine competence. It also describes who has the authority to appoint guardians for you and your estate. However, the law doesn’t have the power, or understanding, to know which one of your kids is the best one to take care of you in the event you become incapacitated.
(Also, who will take care of your kids if you become incapable of doing so?)
A DPOA gives you the ability to plan out a worst case scenario and keep people out of the situation that don’t know you, the people you trust, and your wishes. After-all they would be trying to do the right thing by you, but they would truly not be able to understand who you would prefer to take care of you and/or your assets, and why.
There are always two points in a DPOA agreement where the evaluation of competence is key to the execution of a DPOA. And in some cases there is a third point where you should understand what a determination of competence requires.
Determining Competence at the Establishment of a DPOA
The first point is at the establishment of a DPOA. You can’t enter into a DPOA agreement if you lack the capacity to do so in the first place. That would make the whole idea of a DPOA pointless. A DPOA protects you by appointing someone else to act on your behalf if you become incapable of doing so. If you are already incapable, you can’t appoint someone, being that you are unable to make that determination.
We’re going round-and-round on this. But suffice it to say, it’s not uncommon for the attorney helping you to draft the DPOA to ensure that you have the capacity to do so in the first place. In some cases, this may even mean getting a doctor’s opinion that you are competent and capable of entering this agreement.
Determining Competence at the Execution of a DPOA
The second point where a determination of competency is pivotal is when there must be a determination of incompetence. It’s possible that you may be unconscious or otherwise alive but incapable of interaction. in which case the issue of competence is essentially clear. However, in most cases, the question of competence is one that slowly manifests in your mind, your families, friend’s, and caregiver’s minds for some time before it is finally addressed. Often, the idea of addressing those barriers is tremendously tough for all involved.
As you setup your DPOA you can help to smooth potential issues like this by defining how you’ll be determined to be incompetent. Do you have a trusted family doctor that knows you? They can be singly identified in your DPOA as the person trusted to make a professional determination of competence. Are you worried about one doctor being swayed or being too busy to take the time to make an informed decision? You can specify that you desire two doctors’ opinions prior to the stipulations of your DPOA being met.
Safeguarding Yourself in a Durable Power of Attorney
Whatever criteria you and your estate planning attorney discuss and agree upon for your DPOA, once you’ve established the DPOA it can and will go into effect if the criteria are met. And it’s possible that if executed, by meeting the criteria you set forth, that you may not feel at the time that you’re incompetent. This is why you should work closely with someone you trust to setup your DPOA, and why you should consider the idea that your incompetence might only be a temporary situation. You will want to work with your attorney to ensure that the potential and process for you to re-establish competence and re-establish control of your own care and estate management abilities is spelled out too.
A DPOA is one aspect of lifetime planning that you should consider at any age. However, it is a very serious item that you will want to spend time thinking about, understanding, and once established you’ll want to update it to reflect your changing life needs as well as your changing relationships.