A durable power of attorney is a legal document that delegates to someone you choose, the power to act on your behalf. It covers circumstances where a person delegating their power of attorney (the Principal) is preparing for potentially becoming incapacitated. Durable powers of attorney cover medical care and finances for the duration of incapacitation and inability of a person signing such an agreement to manage their own affairs alone.
Power of attorney means a specified person (Attorney-in-fact) is legally permitted to manage important matters for another named person. It allows this trusted person to continue acting on the principal's behalf if they become too ill to manage their affairs or unable to communicate. The agreed powers can cover: bill payments, investment management, or medical care. Without it, if unfortunate circumstances befall a person, their family or friends may need to go to court to obtain authority to handle their affairs.
Durable power of attorney can involve separate documents pertaining to different matters of concern to the principal, such as health care issues or finances.
This arrangement differs from ‘ordinary’, or ‘nondurable’, powers of attorney, which automatically cease should the person who makes this agreement lose their mental capacity.
A Principal may appoint one single attorney, or more, to act as follows:
The scope for durable powers of attorney can vary between state jurisdictions. Thus the Principal can only agree to the purposes delineated by state statutes in which they are to be used. Durable Power of Attorney may also involve the use of specific language as specified in the relevant state statute.
Limited powers of attorney are exactly as they are described, outlining restrictions on the attorney-in-fact's powers to act on behalf of the Principal. Specific powers will outline the circumstances in which they are entitled to act, such as signing a contract, when the principal may be unavailable.
The lawyer acting for the Principal and the Attorney-in-fact should keep a copy of the signed agreement for their records.
You can exercise this legal power for managing any type of financial, domestic or medical resources, including:
People who may find this legal tool useful are:
Limitations: Ordinary powers delegated to the attorney-in-fact can be general or specific and apply when the principal has the capacity to give authority to the attorney-in-fact to manage their specified legal issues on their behalf. Should the principal subsequently become incapacitated, a durable power of attorney is applicable if the principal has made such preparations.
Incapacity includes when the principal is injured, sick or disabled such that they are not able to communicate. Durable power of attorney continues to endure legally after the principal becomes unable to express their own wishes.
Pre-Arrangement: The document authorising durable power of attorney can be drafted in advance of incapacity, so that this power of attorney becomes immediately effective upon the principal becoming incapacitated, or it can be in place throughout a person’s disability, regardless of capacity to communicate.
Power to Revoke. A principal has the power to revoke ordinary power of attorney any time while they still have legal capacity to act. It is also revoked automatically when the principle becomes incapacitated. Also, durable power of attorney can be revoked by the principal any time while they still have the legal capacity to act. Following their incapacitation, however, a person ‘of interest’ to the principal, such as a family member or a business colleague, can petition a local probate court to become the principal’s appointed ‘conservator’ and if successful, they can then petition the probate court to revoke any pre-existing durable power of attorney.
Health Care Directives: Most U.S. states authorize an attorney-in-fact to decide on appropriate medicals for the principal when the principal becomes unable to communicate their wishes. However, some states also have their own health care surrogate appointment laws in place to allow any medical patient to appoint someone they trust to make medical treatment decisions on their behalf without the necessity of filling out a durable power of attorney form. This may exclude decisions on monetary transactions during incapacitation however.
Is it possible for an Agent to steal my money and property?
Yes. A power of attorney can be abused. A principal’s assets can be transferred to the Attorney or others. It is vital to appoint a highly recommended and trustworthy agent to act on your behalf. Look for professional credentials.
How many copies of a Power of Attorney need to be signed?
You are only required to sign only a single copy. However, in some cases several original copies may be applicable, e.g. where banks and brokerage companies use their own forms. To ease administration for your attorney-in-fact, prepare two (or more) durable powers of attorney with your own form and forms provided by any relevant parties with whom you do business.
After I sign a Power of Attorney, can I still make legal and financial decisions for myself?
Yes. Your named attorney-in-fact is only your representative. As long as you are capable, you can instruct them to only deal with specific matters.
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