Powers of Attorney can generally be categorized as either ordinary or durable. (Note that both kinds come to an end when the principal dies.)
An ordinary Power of Attorney is only valid for as long as the principal is capable of making decisions and acting for him or herself. If the principal dies or becomes mentally incapacitated, the Power of Attorney is deemed to have been invalidated and immediately ceases to have effect. As a result, the family of the principal may be left in a position whereby they are powerless to deal with the principal’s affairs unless they seek court intervention.
To be recognized as durable, a Power of Attorney should contain a clear and unambiguous statement to the effect that it is intended to be ‘durable’. It should also state that ‘this Power of Attorney shall not be affected by the subsequent incapacity of the principal’ or ‘this Power of Attorney shall become effective upon the incapacity of the principal’, as the case may be, or else use similar words that show it was intended to be valid even after the principal became incapacitated.
For more information on ordinary and durable Powers of Attorney, read some of the other articles on Powers of Attorney on this website. Remember, a durable Power of Attorney is included in every good estate plan!
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