A durable power of attorney is a power of attorney that becomes or remains valid when the principal goes unconscious, becomes mentally incompetent or loses the ability to communicate. It is normally used when the principal is a seriously ill patient, to allow the agent to make medical or financial decisions on behalf of the principal.
A durable power of attorney must be in writing and signed and dated by the principal. It must clearly describe the agent's authority. The principal must be mentally competent at the time he signs the power of attorney. The principal's signature must be witnessed by two people, who must sign the document in the presence of the principal. The witnesses must either sign in each other's presence, or have their signatures notarized. The principal may appoint either one or two agents, but if he appoints two, their decisions must be unanimous.
The agent may make medical decisions on behalf of the principal as long as they do not contradict the principal's stated wishes, and, in the case of medical decisions, as long as he considers the advice of the attending physician. The agent may not make a gift out of the principal's assets unless this authority is clearly stated in the power-of-attorney form. The agent must act in good faith and for the benefit of the principal rather than himself. He must keep a written record of all decisions made, and the principal may demand a copy of this record whenever he is mentally competent. The principal or a third party may challenge the agent's actions in court, subject to a five-year statute of limitations for bringing an action.
Third Party Duties
A third party, such as a physician or a bank officer, is entitled to refuse to honor a power of attorney, as long as he immediately informs the principal or his guardian (if any). If he is a physician, he must cooperate with the principal's removal to another health care facility if the principal's family or guardian so desires, and he must cooperate in the transfer of medical records.
Revocation of Authority
A principal may revoke a power of attorney at any time, in whole or in part, as long as he is mentally competent. If he does so orally, he must do so in the presence of two witnesses, and he must destroy his copy of the power-of-attorney form. The revocation is effective as soon as the agent learns of the revocation. Death of the principal does not automatically revoke the power of attorney until the agent learns of the principal's death.
David Carnes has been a full-time writer since 1998 and has published two full-length novels. He spends much of his time in various Asian countries and is fluent in Mandarin Chinese. He earned a Juris Doctorate from the University of Kentucky College of Law.