General Vs Durable Power Of Attorney
Q: A dire medical situation has arisen with a family member who, several years back, signed and had notarized a General Power of Attorney naming me to handle *all* of their business should the need arise. Now, attempting to act in that person's stead, I'm being told that the document isn't acceptable, that it should have been a Durable POA. Does anyone know if this is the case? (If it makes any difference, I live in Washington state.) The intent of the person giving this POA was for me to "do everything"
A: -You didn't give the wording of the document so I can only speak generally. If the doc says something to the effect of .... "I appoint John as my attorney in fact to manage and conduct all of my affairs .... and to perform such things as a) to deposit and pay monies, .... b) to enter any safe depoist box, .... g) to pay expenses and collect receivables, ... m) to sign tax returns, This power of attorney shall continue in full force and effect during my lifetime and shall not be affected by my disability, incompetency, or ill-health ...." Perhaps yours is not worded as precisely and unequivocally. You might have to register the doc at your county courthouse. Who told you it isn't acceptable? A bank? Stockbroker? -If the power is "durable" it will say something like "this power of appointment shall not be affected by my disability" or words of similar effect. In most states, a power of attorney is NOT durable, and becomes ineffective when the principal is disabled, unless it contains the magic language. (Pennsylvania is an exception. In Pennsylvania, the law is that all powers of attorney are durable unless they say they are not.) -Check with a WA attorney. The term "durable" generally refers to the ability to endure change... like a failure of mental capacity. I believe WA state has a statutory DPA for HEALTH CARE (AKA an advance health care directive) which can be filled out relatively easily and provides for HEALTH decisions in the event of incapacity, and some incidental powers. However, if it is similar to CA the principle must sign in the presence of witnesses. If the principle is already in a coma, and you have not proper and durable authority for health or business decisions, you might indeed find your documents not 'acceptable'. Check with a local attorney.. if there is something that can be done, they will know what, how and when. Initial consultations are inexpensive, often free, and you will know where you stand and what it takes to get where you need ot go.
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