Preparing for incapacity is an important aspect of estate planning. A durable power of attorney is a legal document appointing another person you trust to make financial decisions for you. Creating a financial power of attorney is important, especially if you become incapacitated and incapable of managing your own affairs.
Appointing a durable power of attorney to act on your behalf can save you significant money and time. Your agent can help you by paying your bills, filing taxes, and managing other financial affairs. The Palmer & Slay, PLLC attorneys have helped many Mississippi clients create comprehensive estate plans that include durable power of attorney documents. If you’re interested in creating a durable power of attorney, we’re here to help.
What Is a Durable Power of Attorney?
A durable power of attorney allows another person to make financial decisions for you if you ever become incapacitated. A durable power of attorney is a type of financial power of attorney. The appointed agent has the legal authority to manage your financial or business matters.
Under Mississippi law, a power of attorney isn’t automatically considered durable. A durable power of attorney requires a statement that you intend the document to go into effect immediately after signing until you revoke the document. The relevant statute suggests adding the following language to make the document durable. “This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time.” (Miss. Code § 87-3-105.).
Alternatively, you can choose for the power of attorney to go into effect only after you have been determined to be incapacitated by a medical doctor. Your appointed agent can make a wide range of financial decisions on your behalf, including, but not limited to, the following:
- Paying your bills
- Filing your taxes
- Buying and selling your property
- Applying for government benefits for you
- Banking and financial transactions
- Transactions related to retirement plans
- Securities transactions involving stocks and bonds
- Other personal financial decisions
What Happens If I Don’t Have a Durable Power of Attorney?
If you don’t have a durable power of attorney for your financial affairs and become mentally or physically unable to communicate, a person you may not have chosen could be appointed as your agent and make financial decisions for you. Your loved ones may become involved in a dispute over who should act as your financial agent. Creating a durable power of attorney allows you to appoint the person you trust to make decisions.
Types of Powers of Attorney in Mississippi
A financial power of attorney is separate from a medical power of attorney, which allows an appointed agent to make medical decisions on your behalf. In Mississippi, the medical power of attorneys is combined with a living will in one legal document called an advance healthcare directive. You may appoint the same person or different people to act as your financial and medical power of attorney.
The Legal Requirements for Creating a Durable Power of Attorney in Mississippi
For a durable power of attorney to be legally enforceable in Mississippi, the person creating the document must be of sound mind. It’s important to create a power of attorney document before you face a medical crisis or are involved in an emergency that leaves you incapacitated. If you are helping your loved one create a power of attorney and aren’t sure they meet the mental capacity requirement, discussing your concerns with an attorney can help you understand your legal options.
Do I Need to Have My Durable Power of Attorney Notarized?
Mississippi law doesn’t require powers of attorney to be notarized. However, signing your durable power of attorney in the presence of a certified notary public can be beneficial. Many financial institutions won’t accept a power of attorney unless it’s been properly notarized. A notary can help you authenticate the legal document.
After your durable power of attorney has been notarized, you should store the document in a safe place easily accessible to your loved ones. Let them know where to find the document. If you become incapacitated in an emergency, it’s important that your financial agent can locate the original document so he or she can begin acting on your behalf.
Many people choose to give a copy of the document to their agent so he or she can become familiar with its terms. If you’ve given your agent the authority to conduct real estate transactions for you, you may want to file a copy with the Chancery Clerk’s Office.
Selecting a Financial Power of Attorney
In Mississippi, any adult of sound mind can act as your financial agent. When choosing a power of attorney, you should consider a person’s trustworthiness and willingness to act as your power of attorney. You should also consider whether they live close enough to you to fulfill their obligation.
You can appoint co-agents in Mississippi who are authorized to make financial decisions for you and carry out financial tasks simultaneously. Choosing a single durable power of attorney can help you minimize potential conflicts between co-agents. Appointing a successor agent is important. If your first choice isn’t willing or able to act as your agent, your successor agent can fulfill the role.
When Does My Financial Power of Attorney End?
Any type of power of attorney ends automatically at your death. Durable powers of attorney can also end under the following conditions:
- You revoke the document while you are of sound mind
- No agent is available because the agent you chose isn’t available
- A court invalidates the document
It’s rare for a court to invalidate a durable power of attorney in Mississippi. They usually only do so when they conclude you weren’t mentally competent when you signed the document or were the victim of undue influence or fraud.
Discuss Your Case with an Experienced Attorney in Mississippi
When you create a durable power of attorney, you can rest assured that your agent will handle your legal, business, and financial matters if you become incapacitated. Contact the Mississippi estate planning attorneys at Palmer & Slay, PLLC to learn how we can help you prepare for the future.
Palmer & Slay, PLLC, is dedicated to assisting clients within Mississippi, including Scott County, Rankin County, Brandon, Flowood, East Jackson, and beyond.