Conditional Power Of Attorney??
Q: Let's assume that Joe creates a power of attorney. He appoints George as his attorney-in-fact and gives George the power to access Joe's bank accounts. At the same time, Joe appoints Sarah to act as his attorney-in-fact if George is "unable or unwilling to act." Sarah would have the same powers as George. How does one prove George is unable to act? How does one prove George is unwilling to act? What should be satisfactory proof from the bank's perspective? Does it require a court order, or is some lesser form of proof acceptable?
A: Why did Joe in drafting his power(s)-of-attorney borrow language commonly used in wills or trusts in the context of fiduciary appointment (e.g., "I name George as my trustee, but if George is unable or unwilling to act, I appoint Sarah in such capacity instead") rather than (simply?) appointing George and Sarah "severally" as his agents named in the power in question? What if anything is it about the relationship between/among Joe and George and Sarah that militates against this alternative if it is not too late to implement it -- perhaps, if Joe wished, with whatever further language (even if arguably basically superfluous given the most common definition of "several") as may be appropriate to the ends Joe wants to achieve and to the relationships between/among all three (e.g., that "third parties may [or: third-parties shall] act on the direction of either Sarah or George without any need to inquire into the whereabouts/instructions/opinions of the other" perhaps with additional indemnifying language for the benefit of third parties who rely on the "several" element just from a direction of, as the case may be, Sarah but not George or George but not Sarah; etc., etc.)? What does the instrument or, failing that the applicable state's legislation prescribing what third parties may/should do in reliance on what is proffered to them as a power-of-attorney? Granted, one can posit instances (and, unfortunately, lawyers and judges well-experieced in this sort of Stuff too readily can cite real world cases) re. which the power-of-attorney is a durable such and is drafted as you hypothesize and Joe has since become incapacitated or maybe permanently incompetent, so that substituting a better drafted one no longer is a practical option, and an unresolved dispute arises that eventuates in litigation -- but when/if so, the dispute would be resolved as would any contract/instrument related lawsuit: read what the operative document says then prove whatever is required to be proven to comply with its stated conditions. Otherwise, however, aren't these questions ones that, at least in the first instance, the bank or other third party asked to act in reliance on the instrument will answer for itself/himself/herself based on the bank's or other third party's own degree of practicality/perversity (and, one hopes, good business judgment)? Suppose, f'r'instance, even for an instrument drafted exactly as you posit, the bank telephones and emails George and sends a messenger to knock on George's door; but George has taken his phone off the hook so that there is a persistent busy signal, ignores the email, and yells through the door at the messenger, "Go away and leave me alone!" Oughtn't the bank conclude that George is unwilling to act in such a circumstance especially if, meanwhile, Sarah has requested/directed some the doing of some act encompassed within the instrument's subject matter? Or suppose most of these facts, except that Sarah tells the bank or other third-party that George has been hit by a car and is in a coma at the hospital and the bank verifies the factual correctness of this statement. Why, in other words, does your question, re. which you do not report any other facts, appear to presume that the bank or other third-party will not act reasonably if these sorts of factual variants occur? Unless there is some special factor about the Joe-Sarah-George relationships that militate against so doing, arguably better drafting practice would warrant the "severally" option and maybe it isn't too late for Joe to consider it (information you don't provide). But what exactly is the problem at hand?
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