Q: What is the difference between a General Power of Attorney, a Special Power of Attorney, and a Durable Power of Attorney?

Answer:

All powers of attorney are documents that allow one person (the Attorney in Fact) to act on the behalf of another (the Principal) for a legal purpose. The one thing that most powers of attorney have in common is that they cease to operate if the principal becomes mentally incapacitated. A Durable Power of Attorney (“DPA”) is unique in that it remains valid during incapacity.

A General Power of Attorney grants total power over most if not all financial matters that most Durable Powers of Attorney cover, but it is not valid in case of incapacity. A Special Power of Attorney is limited in some specific way, either in time in scope or in authority, and also does not survive incapacity of the Principal.

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Jan Cummins

Counselor and Attorney at Law

CERTIFIED SPECIALIST, ESTATE PLANNING, TRUST AND PROBATE LAW, STATE BAR OF CALIFORNIA BOARD OF LEGAL SPECIALIZATION

220 STATE ST. SUITE E
LOS ALTOS, CA 94022

650-935-2201

Answers at a Glance

Why do I need an Estate Plan?

Even if you have no property to speak of, you need to have documents that give someone else the power to handle your finances and/or make health care decisions for you if you are incapacitated mentally or physically.

What is a Will?

A document by which a person directs his or her estate to be distributed upon death.

What is a Trust?

A trust is a legal document that allows the parties involved to conduct legal transactions independent of the supervision of a court of law.

What is the difference between a Revocable Trust and an Irrevocable Trust?

A Revocable Trust can be revoked by the person who created it (the “settlor”) during the settlor’s lifetime. An Irrevocable Trust cannot be amended or revoked by anyone, including the settlor, independent of court action.

What is the difference between a General Power of Attorney, a Special Power of Attorney, and a Durable Power of Attorney?

A Durable Power of Attorney remains valid during incapacity. A General Power of Attorney is not valid in case of incapacity. A Special Power of Attorney is limited in some specific way.

Why do I need an attorney-created Health Care Directive when I can get one from the hospital for free?

The Health Care Directive (“HCD”) form available in many Senior Centers and at most hospitals refers primarily to your medical care in the hospital.

What is Elder Law?

Elder Law is Estate Planning Law as it specifically applies to people over 65.

What is Special Needs Law?

Special Needs Law is the law surrounding the rights and concerns of people who are disabled or otherwise eligible for government benefits due to their particular physical or mental limitations.

Who needs a Special Needs Trust?

A Special Needs Trust can be set up for an individual who is not currently receiving government benefits, but who might need them in the future.

How is legal ownership of property established?

Some forms of title will keep the property out of the jurisdiction of the court, as the property passes from one owner to another immediately at the moment of death.

Who needs a Marital Agreement and why?

If there is a significant difference in the level of wealth or responsibilities between the two who are marrying, or if both parties have children from former marriages, a freely entered legal contract clarifying their respective financial commitments can be important.

What homework should I do prior to meeting an estate planning attorney to develop my estate plan?

It’s helpful to bring notes about your assets and to whom you'd like to leave those assets. Any related documents should be brought to your first meeting.

When does a person need an Estate Plan?

Everyone should create an estate plan on their 18th birthday, or very soon thereafter.

What is included in a typical Estate Plan?

A typical Estate Plan includes a Will, a Revocable Trust, a Durable Power of Attorney for Property Management (“DPA”) and an Advance Health Care Directive (“HCD”).