Should a Durable Power of Attorney be in Effect Only at Incapacitation?

Standard Legal’s Durable Power of Attorney document is effective regardless of the current physical or mental condition of the Principal. Here’s why.

Assuming that the Principal has the proper mental capacity to grant the authority at the time the Power of Attorney was signed, our Durable POA takes effect at the time of signing. It has no expiration (thus the designation ‘Durable’). Once signed, the Attorney-in-Fact (AIF) holds that power until it is revoked in writing, and at that time this document should be returned to the Principal.

To Standard Legal’s team, it would be difficult to craft a POA of value if the Attorney in Fact had to prove to the transactional parties that the Principal was incapacitated.

An example, say the AIF goes to the bank to close an account for the Principal. What would the AIF need to show the bank representative indicating that the Principal is truly incapacitated?

If the AIF has possession of the signed document, he or she can act as Agent. If the Principal does not want the agent to act, the Principal can sign the document but not deliver it to the AIF, instead informing the AIF of the location of the document and instructing the AIF to retrieve the document only if the Principal is incapacitated.

The other POA option is to use the Limited Power of Attorney document, which gives the Principal highly-specific use control.

For additional clarity, it IS common for a Health Care Power of Attorney (HCPOA) to have a provision indicating that the decision making authority is vested in the Agent only when the Principal is incapacitated. A HCPOA is most often be used by the very medical professionals who can make the immediate determination that the Principal is incapacitated.