If I choose a durable power of attorney, how would my incapacity be determined?


In a durable power of attorney, generally the document itself states how an incapacity would be determined. Normally, it’s when you’re treating physician feels that you are no longer able to make decisions. This is in contrast to a guardianship, where the court would be required to appoint an attorney to represent you. The court would also appoint three people to evaluate whether or not you’re able to make decisions. If you’re not able to make decisions, the court would appoint a guardian. A durable power of attorney thus is much more efficient, and ultimately saves your assets for your estate.