In a power of attorney, an individual gives a third party powers to make decisions and act on the individual's behalf should he become unable to make decisions. A durable general power of attorney however, can be in effect while the individual is legally able and has the capacity to make decisions, as well as when the individual is incapacitated and no longer able to make decisions. It does not remain in effect after the individual's death, however, except in cases in which the third party (also called the 'attorney-in-fact') must conclude business undertaken on the individual's behalf prior to their death.
Sample Power of Attorney Form
The sample power of attorney form provided can be accessed by clicking on the image. Please note that this form is intended to be a sample only, and is not a substitute for obtaining legal advice from a licensed attorney. Note, also, that states may have specific laws regulating the contents, form, and the execution of power of attorney forms. To determine your state's specific rules, contact your state's attorney general's office.
In the opening section to the sample, you must identify yourself and the individual that you select to act as your attorney-in-fact. This section also asks you to certify that you were of sound mind at the time you created and executed the document. Here also, you identify whether you are married or single, which helps the court understand more about yourself should your document ever be questioned.
Designation of Alternative
Sometimes, the individual you select as your attorney-in-fact is unwilling or unable to perform their duties. In this case, any alternative you select will be appointed to the position. Therefore, in this section you designate the individual you would like to succeed your original choice for your attorney-in-fact, should your original designation be unable to fulfill the position. Note that a court will never force someone to act as an attorney-in-fact, which is why you ought to choose a backup.
Authority to Act
This section states that the individual acting as the attorney-in-fact on your behalf has the authority to do so. This is necessary to state so that the court and public know that you intended to allow your attorney-in-fact to exercise the same powers you have.
In this section, the powers you give to the attorney-in-fact are delineated so that what he can or cannot do on your behalf is specified, thereby helping the attorney-in-fact, public, and courts know the limits of what he can do. Delete any powers that you feel do not apply to your situation and, in number nine, add those powers you would like your attorney-in-fact to possess. Be as specific as possible when adding powers to avoid confusion or debate.
Restrictions on Powers
This section states what your attorney-in-fact cannot do. It is included in power of attorney forms to avoid problems over what an attorney-in-fact may legally do if ever questioned. Courts rely on this section should the attorney-in-fact be accused of acting without authority.
Although the introduction to the sample stated that the form was intended to be a durable power of attorney, this section clarifies what you meant by that. It is necessary to include this section so that courts and the public know that you intend to allow your attorney-in-fact to act on your behalf before you become incapacitated.
This section also excuses your attorney-in-fact from any liability stemming from exercising a power which he was legally able to perform on your behalf. Most individuals will not accept the position of attorney-in-fact without this provision.
In this section, you clarify to third parties that they are able to rely on the actions, behaviors, and statements of your attorney-in-fact. This allows third parties to act as though dealing with you whenever interacting with your attorney-in-fact.
Revocation of Prior Powers
Here, you state that this document is intended to be your power of attorney and that its execution revokes any prior power of attorney forms you created. This helps avoid confusion about what form is intended to govern. Usually, if a dispute arises, courts will go with the most recently dated form.
This section states that any disputes arising from your power of attorney are to be held in a court of law with jurisdiction over the form. This provision avoids the problem of disputing parties arguing over what court should handle their disagreement.
Almost all states require that a power of attorney be witnessed by at least two individuals who do not have a vested interest in the form. This means that neither the individual creating the document nor the individual being identified as the attorney-in-fact, nor the person identified as the alternative attorney-in-fact can be a witness. Also, the form must be notarized. Without witnesses and notarization, the form is typically invalid.
Your Durable Power of Attorney
As with any legal document, always consult an attorney prior to creating or executing a durable general power of attorney. An attorney will help you decide what powers to give to an attorney-in-fact and help you meet state legal requirements to ensure that your form is valid.