DURABLE POWER OF ATTORNEY

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DURABLE POWER OF ATTORNEY

What is a Power of Attorney?

A power of attorney is a document used to appoint a person to act as an agent.

An agent is a person who has the legal authority to act for another person.

The person who appoints the agent is called the "PRINCIPAL."

The agent is called the "ATTORNEY-IN-FACT."

Who May Be Appointed By a Power of Attorney?

The agent appointed by power of attorney may be any adult, and is often a close relative, lawyer or other trusted individual. The person appointed does not have to be a resident of the state of Arizona.

What Makes a Power of Attorney "Durable"?

A provision in a power of attorney which causes the power of attorney to remain valid even when the principal becomes incapacitated makes the power of attorney "durable."

Many people are unaware that an ordinary power of attorney is revoked, and the agent's power to act for the principal automatically stops, if the principal becomes incapacitated.

Under Arizona law, a power of attorney which contains the proper language may be made "durable." This means that the power of the agent to act on the principal's behalf continues even if the principal becomes legally incapacitated.

It is possible to create a durable power of attorney which will only become effective when the principal is incapacitated or when some other specified event or condition occurs. This is ordinarily called a "springing" durable power of attorney.

A Durable Power of Attorney Can Be Revoked

Under many circumstances, the death of the principal revokes a durable power of attorney. In addition, a durable power of attorney may be revoked by the principal at any time, either orally or in writing. It is strongly recommended that the revocation be written and be communicated to those to whom the power of attorney was communicated.

Caution About Powers of Attorney

Durable powers of attorney, and especially springing durable powers of attorney, need to be very carefully prepared. You should seek the advice and assistance of a competent attorney who practices in this area. In addition, you should use great care in the selection of your attorney-in-fact. Remember, you are trusting not only your property, but perhaps your life, to the person you nominate and appoint.

In Arizona, any authority granted in a power of attorney the use of which is not in the best interest of the principal must be specifically identified in detail within the instrument and must be separately initialed by the principal and by the witness at the time of execution.

Some Powers May Not Be Granted By a Power of Attorney

Under Arizona law, a power of attorney may not grant the right to do certain things. For more information about what a power of attorney may not do, seek the advice of competent counsel.