Power of Attorney after Incapacitation

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Who Can Grant Power of Attorney?

Anyone with the appropriate mental capacity can grant the power of attorney to another. The person granting the power of attorney is the "principal" or "grantor," and the person who attains the responsibility is known as the "agent" or "attorney-in-fact."

A "principal" will grant the power of attorney to an "agent" or "attorney-in-fact." The agent becomes the holder of the power of attorney and will make various decisions for and act on behalf of the principal in transactions involving banking, property, or law. The agent does not have to be a lawyer. She may be a trusted friend or even a family member.

Can Power of Attorney Continue after Incapacitation

There are three kinds of powers of attorney: nondurable, durable, and springing.  A durable power of attorney continues even after legal incapacitation, i.e., the principal grows old, sick, and unable to make decisions. An incapacitating event such as a coma or other catastrophic injury will invoke a springing power of attorney and is often given to health care providers.

If the power of attorney is nondurable, then the power does not continue after the grantor is incapacitated. Nondurable power of attorney is often granted for a specific transaction, such as signing a document in a city far away.

Can the Power of Attorney Be Revoked?

The principal may not revoke the durable power of attorney after incapacitation. However, this is rarely an issue because legal incapacitation is more grievous than medical incapacitation. A legally incompetent person is not able to understand what she is signing and is often not even aware of her own condition.

Likewise, an already incompetent person cannot grant a durable power of attorney. In the case of gradual incapacitation, such as Alzheimer ’s disease, an elderly person usually appoints a legal guardian who will take care of them and manage all their affairs after incapacitation.

Should I Appoint a Power of Attorney When I'm Still Healthy?

If the person has failed to appoint a guardian or grant a durable power of attorney before she becomes incapacitated, the probate court may assign a "conservator" to manage her affairs. However, most people do not want a conservator, as their affairs would be made public. People with any kind of an estate will generally think ahead and grant a durable power of attorney and/or guardianship.

Contacting an Attorney

You should consider contacting an experienced estate planning attorney to assist in the drafting your power of attorney. An experienced attorney at law will be able to ensure ensure that the document is enforceable and your rights are protected.

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Last Modified: 01-10-2017 09:18 AM PST

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