Durable Power of Attorney

By: Kent Pinkerton

A Durable Power of Attorney authorizes the principal's named representative [attorney-in-fact] to continue to act for him or her after he or she become incapacitated; the legal document must contain the words, "This Power of Attorney shall not be affected by my disability" or "This Power of Attorney shall become effective upon my disability" or something along similar lines.

However, the principal must sign the Durable Power of Attorney signed before he or she becomes disabled. Also, the document should ideally indicate how the principal will be determined to be disabled so that when the attorney-in-fact tries to implement the Durable Power of Attorney, he or she can convince the third party that the principal is indeed disabled.

A Durable Power of Attorney may be restricted to authority over real estate and financial matters. But if the principal is authorizing someone to make medical decisions on his or her behalf, he or she may indicate whether life support systems should be withheld or withdrawn in the face of a terminal illness or imminent death.

The principal may revoke a Durable Power of Attorney at any time. To do so, he or she should inform the attorney-in-fact, in writing, that the Power of Attorney is being revoked and request the return of all copies of the Power of Attorney. The principal should also notify his or her bank or other financial institution where the attorney-in-fact has used the Power of Attorney that it has been revoked. Lastly, he or she should file a copy of the revocation with the County Clerk, if the Power of Attorney has been filed in the Clerk's office. It is in the principal's best interests to hire a lawyer to carry out the revocation.

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