The durable power of attorney is granted by the principal to the agent in order to legally allow the agent to act on behalf of the principal. The word ‘durable’ with all three kinds of Power of Attorney (POA) means that the agent can continue to act on behalf of the principal even he is a mentally challenged person or not.
When a person is incapable of a certain disease, he is unable to dispose of his goods independently. This is why a person is usually granted a power of attorney via POA forms. The power of attorney allows a person to act on behalf of another person. The same can be in three ways: General, Limited and Medical. If it is durable, it means that the power will be valid when the person is mentally competent or mentally incompetent.
What is a Power of Attorney (POA)?
A power of attorney is a document that allows one person to act on behalf of another. The one who grants the power of attorney is the principal and the one who receives it is the agent. There are three types of power of attorney:
- General Power of Attorney: It gives you the ability to act on behalf of a third party in cases such as buying and selling property, investing, acquiring different government benefits, developing business and managing taxes and lawsuits.
- Limited Power of Attorney: You can only act in a certain situation. It will be detailed in the power of attorney.
- Legal and Medical Power of Attorney: Allows the bearer to make decisions of a medical nature and with respect to a certain illness or medical treatment.
Durable Power of Attorney VS General Power of Attorney
What are the functions of durable power?
Generally, the power of attorney could be canceled in any of the four cases: If it was revoked, if it had an expiration date, if the principal died or if it became mentally incapable. That is why it was decided to create a durable power of attorney. Its function is to ensure that, despite a mental incapacity, the holder of the power could continue to exercise the right.
The main problem of an incapacitated person is that he cannot make decisions on his own or he cannot transmit these decisions to a third party. This power would also apply to those situations in which the principal suffers an injury and is temporary without any knowledge.
How do you create lasting power?
Because of the objective that it has to fulfill, those powers destined for medical attention are always lasting. For the rest of the powers to be durable, the language of the state law authorizing the durable power, must be included in it.
In many countries, there are forms for applying for certain powers of attorney, mainly those powers that are used for financial or medical matters. In the model forms, the necessary language is included to be able to request the durable power of attorney. We must try to verify that the form complies with everything established in the law, for its correct processing.
When does durable power come into effect?
It depends on the state in which it is being processed. Generally, it can come into effect at the time the durable power of attorney is signed or when the principal is mentally incapacitated. To ensure that the power of attorney comes into effect instantly, it must include the following legend: ¨This power of attorney will not be modified in any way as a result of a disability, incapacity, or incompetence that may suffer from¨.
If we are seeking to make it effective only at the time of the disability, you must include the following legend: ¨This power of attorney will begin to govern the same day that my disability, disability or incompetence, starts¨. By doing this, you would be creating a lasting power and a spring power, which means that it will begin to govern from a future event.
Example of a durable power of attorney
The power shown in the image is lasting but limited power. This is due to the fact that it only covers one transaction. A longer durable power, however, will detail in the document all the assumptions in which it could be used.
I………………………………. hereby grant you……………………. a power of limited character for the purposes of being my attorney-in-fact. In this way, I gave him all the necessary powers to exercise and carry out the following acts on my behalf:
Negotiate any type of purchase, sale or transfer that my car…………………. may suffer.
Any act necessary to carry out the principal representation may be carried out by my attorney-in-fact.
This is a power of attorney (POA) that will be effective upon signature and will not be affected by disability, incapacity, or incompetence.
The revocation of this power of attorney may be made at any time I choose, or it will be automatically revoked at the time of my death. Until actual notice of revocation, any person who relies on this power of attorney shall have the right to accept the appropriate authority.