For most people, the durable power of attorney (DPOA) is the most important estate planning document -- even more useful than a trust or will. A durable power of attorney allows a person you appoint to act in place of you for financial purposes when and if you ever become incapacitated.
The person you choose will be able to step in and take care of your financial affairs, such as ensuring all your assets are in the trust to keep it away from Medi-Cal. Without a durable power of attorney, no one can represent you unless a court appoints a conservator. The California probate court process takes time, costs money, and the judge may not choose the person you would prefer to take care of you. In addition, under a conservatorship, your court appointment conservator may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney.
A durable power of attorney may also be either immediate or "springing." Most durable powers of attorney take effect immediately upon their execution, even if the understanding is that they will not be used until and unless the grantor becomes incapacitated. However, the DPOA can also be written so that it does not become effective until such incapacity occurs. In such cases, it is very important that the standard for determining incapacity and triggering the durable powers of attorney be clearly laid out in the DPOA, such as two opinions from licensed medical doctors are necessary.
