Protect Your Rights, Wishes, And Family With A Durable Power of Attorney

By:Wade Anderson

A durable power of attorney is much like a normal Power of Attorney except that it continues to remain in effect even when the principal loses his or her mental faculties and thus becomes incapable of sound reasoning. Unless, and until, the power of attorney has been made durable, it will become ineffective in the event of the principal becoming incompetent.

Thus, it follows that if the power of attorney is not durable, it would result in the family of the principal having to approach the courts to appoint a guardian or conservator over the assets of the principal.

What differentiates a normal power of attorney from a durable power of attorney is the presence of a phrase such as “This power of attorney shall not be affected by subsequent disability or incapacity of the principal”. The presence of such a phrase shows the intent of the principal that the authority that he is giving shall remain in force even if his mental health deteriorates beyond control.

To make a power of attorney durable, it is subject to certain state laws. The Uniform Durable Power of Attorney Act has taken force in as many as 48 states in the US.

There are two requirements to a durable power of attorney. The first is that it shall be in writing and the second that it contain words to the effect that the power of attorney shall remain in effect even in the event of the principal becoming mentally incapacitated. Even though the Uniform Act does not specify that the agreement be notarized, most such documents have space for the notary’s signature.

A lot of states require that the agreement be notarized, especially in real estate matters. In addition, some states even require that the document be witnessed.

It is wise to have such an arrangement even if the Principal and their spouse own everything jointly. In the event the principal becomes disabled, the spouse can still sign checks and withdraw money from jointly held bank accounts, but is unable to sell jointly held property or stock without the signature of the principal.

In addition, the spouse is unable to change the name of a beneficiary to a life insurance policy or retirement benefit plan. Even though the principal holds everything jointly, it is wise for him or her to execute a durable power of attorney.

To revoke this type of agreement, the principal has to be of sound mind at the time of revocation. The revocation must be written and should be sent to the agent and to third parties, like banks. A conservator appointed by the court may also revoke the agreement.

Under normal circumstances, the durable power of attorney may have very broad terms of reference i.e. the principal may authorize the agent to do any and all things. However, there are cases when the agreement shall only confer specific rights to the Agent. The main advantages of having this type of agreement are:

• You have someone to look after you in the event of mental incapacity
• You, not the court, selects the agent
• You save time and expense of not having to go to court

Digg del.icio.us Blink Stumble Spurl Reddit Netscape Furl

Article keywords: durable power of attorney, power of attorney, living will, durable power of attorney agreement

Article Source: http://www.articles2k.com

Wade Anderson is a CPA and operates DigitalWorkTools.com

Legal Forms and Business Documents. Click to view a

Durable Power Of Attorney

Top Legal Articles
1). how to defer jury duty By : Phil Wiley Let’s face it. Jury duty can be a drag, but most of all it’s not always convenient when we’re called up to service. So how can you defer jury duty?
2). A Power of Attorney is Your Legal Representative By : James Hunt What is a power of attorney? Most people have heard this phrase used before...
3). The New Bankruptcy “Means Test” Explained in Plain English By : Charles J. Phelan With the new bankruptcy law in effect as of October 17, 2005, there is a lot of confusion regarding the new "means test" requirement. The means test will be used by the courts to determine eligibility for Chapter 7 or Chapter 13 bankruptcy. The purpose of this article is to explain in plain language how the means test works, so that consumers can get a better idea of how they will be affected under the new rules.
4). Estate Planning - No Contest Clause in your Will By : Ronald Hudkins Copyright 2006 Ronald Hudkins There is value in the story of an older client who had seen a very interesting clause employed in a will. There was a great deal of money at stake and the many family members had little reason to love each other, because they had never met and never knew of each other’s existence. It was expected that the will would be heavily contested on several different fronts in every conceivable way.
5). Top 5 To Dos Before Saying “I do” By : by Jennifer Coleman, M.S./ Ed.S., N.C.C., Ros Today, nearly half of all marriages don't last. Everyday I work with couples going through a divorce, many times over preventable conflicts. I’ve lear
6). How to File a claim for Celebrex injury By : Jefferson Highway, General Counsel There is mounting evidence to suggest that Celebrex (aka celecoxib) is linked to an increased risk of blood clots, heart attacks and strokes. Celebrex
7). Rentacomputer.com (LSS) Legal Support Services By : John Beagle Renting technology for the Legal ProfessionRentacomputer.com will set-up workspaces in courtrooms, offices and "war rooms" for attorneys and
8). Media Stunts For An Injury Claim By : Mohammad Latif The claims culture arrived in the UK and it was chaos. Door canvassers and telesales, knocking and ringing constantly for an injury claim.
9). golf mental tip - get out of your own way! By : rob moore Get out of your own way Developing a strong mental golf game involves identifying the chief problems that usually stump us, and then lea
10). DUI Law Punishments By : Information Association, LLC It’s no surprise that current DUI Law mandates that DUI punishments cause problems in your personal life in the short term. With punishments such as t

New Legal Articles
1). Personal Injury Compensation Claims By : Julian Hall Not all accidents lead to legal proceedings, however if there are no serious injuries, you may be entitled to recover damages for property and other expenses from the third party. The likelihood of legal proceedings will usually rest on the quantum, or the amount of financial damage which has ensued from the accident.
2). Are You the Lucky Owner of a Lemon? By : Karen Kirby Do you want to put the lemon laws of your state to work for you, but you are a little hesitant that you will succeed? Well, then read on ...
3). California Contractor License Bond By : Seth Miller Before a contractor can receive a contractor’s license in California, the contractor must register with the California Contractors State License Board and pay a Contractor's License Bond or a cash credit. In the event of a contractor's license getting suspended or annulled due to a breach of the Contractors License Law, the contractor must file a disciplinary bond with the CSLB.
4). Montana Child Support the Treasure State By : Holcy Montana Child Support How do you know if you qualify for child support? Child support is available to all single parents in need of financial assistance from the non-custodial parent. In order to receive child support services, you must first fill out an application with the state of Montana. When apply for child support, there will be a non-refundable application fee.
5). Criminal background check By : Stanley Alpin Background checks are a useful screening and selection tool for companies. Of the many types of background checks, criminal background checks are routinely carried out by employers to ensure that they are not courting a risk of physical and mental trauma. In fact, in several states in the U.S, criminal background checks are compulsory for prospects who apply for positions in places such as nursing homes, educational institutions, and adult care centers.
6). Employment background check By : Stanley Alpin Employment background checks are becoming increasingly common these days. The reasons for this include the fact that negligent hiring lawsuits that result from the actions of an errant employee can damage a company’s credibility and lead to hefty fines; companies have become more selective in their choice of employees following the threat of terrorist activities; accepting a resume at face value has resulted in many companies wasting time and money due to frequent hire-and-fire situations.
7). How an employee background check works By : Stanley Alpin Over the past few years pre-employment background checks have gained significance for employers big and small. Companies can either execute the required activities in-house or can outsource them to human resource companies that specialize in carrying out background checks. There is a lot of paper-work, co-coordination, and follow-up that goes into conducting a background check and for this reasons companies prefer to get the job done by an outside agency.
8). Is an instant background check even possible? By : Stanley Alpin Given that there are more than 12 million illegal immigrants in the United States and that information on U.S citizens is scattered across various databases all over 3,142 counties, it is safe to conclude that an instant background check is not possible at present. Yet, there are innumerable companies that purportedly offer instant background checks.
9). What shows up on a criminal record background check? By : Stanley Alpin A criminal record background check can throw up a lot of information on an individual including previous arrests as well as conviction and non-conviction information. The information is obtained from Federal Fugitive files, files from the Department of Corrections prison, state criminal records, databases on sex offenders, and prison parole records.
10). Offshore Trust - Effective Estate Planning, You Decide By : Ronald Hudkins Copyright 2006 Ronald Hudkins The creation of offshore trusts and other financial plans is a way of shielding your assets from the laws of the nation in which you reside. It can sometimes be used to remove one of the two certainties of life; taxes. Americans are far less likely than the citizens of other countries to put assets abroad because, although when you receive the benefits of being free of your country’s laws regarding assets (namely taxation) you also lose the aspect of those laws that are designed to protect your assets.