The most valuable tool for small business owners right now is a “business specific” Durable Power of Attorney (DPOA). General DPOAs are commonly found in most well-crafted estate plans. However, in our experience, a small business owner may have more specific issues that need to be addressed in their DPOA due to their unique needs.

For example, does the DPOA address the ability to seek disaster relief loans through the U.S. Small Business Association, especially considering the new government programs? How about the ability to negotiate forbearance agreements? Hire and fire employees?

What makes this even more challenging is most business owners have control issues as well as trust issues as to who should be running their business should they become unable to do so themselves.

Is COVID 19 the Same As a “Mental Disability?”

In this current COVID-19 crisis, the incredible pressure on business owners is staggering. Between having to make hour-by-hour decisions, looking after the family and keeping the business afloat, the small business owner is under ever greater pressure. The most frightening challenge for them is what happens if they become a victim of this virus?

If the business owner becomes so sick that they are basically considered “disabled” under the terms of their DPOA, they may be thinking, “Well, my trusted people will run my business if I’m sick or, worse, in the hospital.”

This is the problem. Those trusted people have no legal authority to do so! They can’t even go to the courthouse and ask for an emergency guardianship because the courthouses are all closed!

This is where the big blind spot is for a lot of business owners. From our perspective, if they do get incredibly ill from the virus and are admitted into the hospital, this is the legal equivalent of being disabled mentally under the terms of the power of attorney.

They need someone to step into their “legal shoes” and run the business, but without the DPOA they are in trouble.


Nothing could be more devastating to a business than to lose its captain during the COVID-19 meltdown. As stated before, trust and control are critical issues that need to be thought about in advance of a crisis.

Plus, social distancing requirements add more complexity. Arrangements must be made to see your lawyer and have a Notary Public witness your signature, but these steps are possible for attorneys who specialize in business compliance are “essential” in this environment. God forbid you download an online form! A durable power of attorney must be properly witnessed and notarized.

To further add to the difficulty, most of the laws across the country addressing these issues are in flux, even as we drafted this article.

Revoke It?

There’s never been a more crucial time to think about who should be the “back up” captain for the small business.

If a business owner is stricken with this awful virus, their spouse cannot run the show unless they are appointed through the DPOA to do so. This is so important to understand. We encourage you to take action now, and to pass this along to other business owners and encourage them to act.

The good news is after this crisis is over, and they feel uncomfortable having the DPOA in place, they can revoke it at any time.

It is not a permanent decision. Once the crisis has passed, they can keep it or destroy it.  However, for the time being, this is the most important legal tool (next to a comprehensive estate plan) that a business owner needs.

We hope this article is helpful. If you have any questions, please reach out. Stay safe.

For your assistance, our office is open for “business compliance”, and we have the ability to draft a “business specific” Durable Power of Attorney, and we also have a Notary who is willing to help in this situation. Call us or email us!

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