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When Not to Use a Durable Power of Attorney

A durable power of attorney is not the right solution for every problem. In some cases, a different form is needed. In other cases, a conservatorship might be a better idea. Do not use a durable power of attorney for finances in these situations:

  • If you can't think of someone you trust enough to appoint as your attorney-in-fact. In this case, a conservatorship, with the safeguard of court supervision, may be worth the extra cost and trouble.
  • If you anticipate family fights. 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 family discord is a concern, hire an attorney to help you decide if a durable power of attorney is the right choice for you.
  • To authorize health care decisions. 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, create a health care directive.
  • To authorize decisions about marriage, adoption, voting, or wills. 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.
  • To give powers delegated to others. 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, you cannot use your durable power of attorney to give your attorney-in-fact the authority to manage your interest in a partnership business if you have a signed agreement giving that authority to your partners.
  • To create, modify or revoke a trust. The power of attorney you make with this program 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.