Before You Go . . .
durable power OF attorney explained
by Galen Gilbert
An astronaut who is planning to go to the moon might want to have someone else who could cash his paychecks to pay his bills and support his family.  If an unexpected emergency arose, that person could sell his stock portfolio or house, and decide which to sell first.  Thus, the astronaut, the principal, would have a trusted agent, the attorney, whose signature on the backs of checks, on deeds, and on notes would have a binding legal effect.  Anyone, not just an astronaut, can have such an attorney, who can be any trusted person:  A spouse, relative, or friend, not necessarily a lawyer.  The attorney can be paid or not, depending upon the complexity of the responsibility and the plans of the principal.  This attorney could refuse to serve, so care should be exercised to select a responsible person who agrees to be an agent.

when should I use A power OF attorney?
Such powers of attorney are in common use, but they have two shortcomings:  Death, and disability of the principal.  Under agency law a principal must always be able to discharge an agent, and no agent can serve without the continuing consent of the principal.  A corollary to this principle is that an agency ends with the death of the principal, since a dead principal cannot consent to the continuing agency relationship.  The same is true of a principal who is legally insane.  Thus, if an agent tries to use an ordinary power of attorney for a major transaction (for example, borrowing money), the lender may ask for proof that the principal is still alive and well.  Providing such proof which can be done only by producing the presence of the principal, defeats the purpose of the power?
powers that endure
A solution to this problem is the durable power of attorney, which endures beyond the disability or the unknown death of the principal.  Massachusetts has authorized these durable powers, which are particularly useful in estate planning.  It is common that before a person dies there will be a last illness that may be short or long, during which mental competence may be lacking.  Unless a durable power of attorney has been executed, nobody can touch that person's personal assets to pay rent or bills or make decisions unless a court appoints a guardian or conservator.  A guardian can make medical and household decisions, in addition to financial decisions.  A conservator can handle only money and assets.  Having a guardian appointed by a court is a costly and time-consuming procedure that can be avoided by the use of a durable power of attorney.
estate planning
Many lawyers are now routinely advising their clients who seek to have wills written, to think about the management of their estate just before death.  This can be done through a durable power of attorney.  The powers given are usually very broad, although they could be limited (e.g. only concerning the principal's income and taxes, but not real estate, or only transactions under one thousand dollars, or only transactions connected with the principal's business, or only until a daughter comes of age).  The key clause in such a power is the clause that triggers the power, typically, when the principal is unable to take care of himself because of mental deterioration that is certified by a physician.

traveling
The presumption that the durable power is valid until the principal is known to be dead protects travelers.  As long as there is no particular reason to suspect that the principal is dead (such as not returning or calling in when scheduled), the durable power can be used without further inquiry.  The clause invoking this kind of power might say "from June 11, 2011 until I return to Boston."

Because a durable power of attorney enables a trusted friend to make medical decisions for an incompetent principal, it is an instrument that everyone potentially can use.  In the future, durable powers of attorney will probably be more common than wills, which concern only property.  Any lawyer who deals with estate planning and probate matters should be able to prepare these new durable powers of attorney for a modest fee, before you go.