Durable Powers of Attorney

By Andrew H. Hook, Esq. Oast & Hook, P.C., Virginia Beach and Portsmouth, VA

Durable powers of attorney (DPAs) are extremely complex, powerful, and flexible legal instruments that create significant legal authority, duties, and obligations. The scope of the power of attorney, as well as its provisions, should be tailored to the needs and situation of the client and should reflect a knowledge of applicable local law.

Those who use form DPAs ignore significant differences among individual clients. While there are basic similarities among clients, everyone’s circumstances differ to some degree. Some client issues may require more oversight than others. Attorneys should make sure the provisions in a DPA are appropriate for each individual client’s circumstances. his is especially important in today’s society with ever-changing family dynamics. More and more families are breaking up, as evidenced by soaring divorce rates. The power and authority granted by DPAs particularly need to address these different family dynamics. Essentially, attorneys should spend the same time and effort in counseling clients about, and drafting, DPAs as they spend on wills and trusts.

Why do attorneys treat DPAs as forms? Estate Planning and Elder Law have become very competitive fields. Many attorneys believe that the client has an expectation that a DPA is an inexpensive, simple form. Therefore, the attorney can spend little time customizing and preparing a DPA. Estate Planning and Elder Law for many attorneys have become volume practices. To service the increased volume of work, the time spent in counseling clients and customizing documents has been reduced.

An effective Estate Planning or Elder Law practice requires a strong attorney-client relationship. This relationship requires that attorneys take the time to understand their clients’ needs and objectives, to discuss with their clients the options available to accomplish their objectives, and to involve the clients in the decision making. If attorneys do not take this time and add value to the process, they will be replaced by software packages, do-it-yourself form books and non-attorney providers. In fact, in conducting an internet search using the term “durable power of attorney,” over one million websites pop up with at least seven on the first page of results offering forms for sale for as little as around $25. If the attorney-client relationship is replaced by these easily accessible, generic form DPAs, the client and the attorney will suffer.

How do you provide the services necessary for a professionally prepared DPA within the constraints of a competitive marketplace? The answer is by developing a system that will permit the attorney to determine the client’s needs, to educate the client concerning the options available, to draft a customized document that addresses the client’s specific needs, concerns, and problems, and then to assist the client in implementing the plan in an efficient amount of time.

For more information, in the Tax Management Portfolios, see Hook, 859 T.M., Durable Powers of Attorney