Your will is your voice from the grave. It is your postmortem set of directions for your executor to give your property to your loved ones.

While you're alive, if not alive and well, there's a second set of instructions that are just as essential: your directions for someone to manage your money when you're not able to anymore. The document with these directions is a durable power of attorney. If you lose your ability to pay bills or run your household, and you have not signed a durable power of attorney, it is likely that no one can do these things on your behalf. Your bank accounts could be frozen. Your mortgage could slip into arrears, your taxes left unpaid.

A joint signer on your bank account may continue to do your banking. Unfortunately, if you and your spouse bought your home together, your spouse won't be able to sell your share of the house on your behalf. But whoever you name in your durable power of attorney can sign for you on a deed to sell your house.

We call this person you've chosen your attorney in fact. He or she need not be a lawyer. The title means that he or she is your agent, someone who works on your behalf. The power you gave your agent is to benefit you, not your agent.

This agent's power is durable: it is effective as long as you're alive but not able to conduct business for yourself. This power evaporates the moment you die. From your death until the court appoints your executor, no one can spend a nickel from your estate, unless you previously put your assets in a trust.

An attorney in fact may sign contracts, pay bills, buy, rent, or sell property, create and fund a trust, hire an attorney to defend you or file suit in court, make gifts to others, and pay for your care at home, in an assisted living residence or in a nursing home.

Your attorney in fact may pay bills for your nursing home but may not decide that you must live in one. If you no longer are capable of making your own decisions or if you refuse to go to a nursing home, the issue will be decided by a judge who has heard your lawyer (not your attorney in fact) in court.

As helpful as an attorney in fact may be, none of us want to yield control while we're doing a fine job running things ourselves. We won't sign a conventional durable power of attorney because it takes effect as soon as it is signed: from that moment on, your attorney in fact makes every financial decision instead of you.

A springing durable power of attorney is much easier to sign. It is the same as any durable power of attorney, except that it says (right up front) the attorney in fact cannot do anything unless the document is accompanied by a letter from your physician stating you're no longer able to manage your finances.

Without this added letter, the springing durable power of attorney is ineffective and you remain in full control. Your attorney in fact is on standby. He or she should know to contact your physician when it's time for you to put aside management of your affairs. Consider your attorney in fact your understudy, ready to step in as soon as you can't perform. Your finances will go on.



Philip Arcidiacono, Esq., is the principal of Archdeacon Law Associates, a law firm in Concord and Lunenburg, Massachusetts, that specializes in elder law and estate planning. He can be reached at pa@archdeaconlaw.com. The firm's website is www.archdeaconlaw.com.