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POWERS OF ATTORNEY FOR EVERYONE

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MICHAEL LYNN GABRIEL

ATTORNEY AT LAW

(BS., JD., M.S.M., DIP. (TAX), LLM (TAX))

TABLE OF CONTENTS

Introduction

Chapter One: Common Questions Regarding Powers of Attorney ............................... 1

Chapter Two: Discussion about Powers of Attorney ..................................................22

Chapter Three: General and Limited Powers of Attorney .............................................40

Chapter Four: Durable Power of Attorney .................................................................58

Chapter Five: Power of Attorney Questionnaire ........................................................255

Chapter Six: Recording and Revoking a Power of Attorney ......................................269

Chapter Seven: Living Will Declaration .....................................................................275

Chapter Eight: Estate Planning Through the Use of a Power Of Attorney and

a Revocable Trust .....................................................................................................285

INDEX ................................................................................................................... 309

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This book deals with powers of attorney and is designed to be informative and easy to use. What a power of attorney is, the reasons for a person to create a power of attorney and the types best suited for each special need are discussed in a clear and concise manner. In particular, the various types of powers of attorney, general, limited, and durable, are each treated separately. The similarities and differences between the various powers of attorney are explained. Specific forms for any type of power of attorney the reader may wish to create. This book is just one of a series that have been specifically written to serve as a tool for the reader to use to understand and appreciate his rights and the procedures employed in the law. The total series are a compendium of practical law as practiced in all 50 states and the District of Columbia are on such topics of:

1. ESTATE PLANNING, a 2-volume set
2. FINANCIAL PLANNING, a 2-volume set
3. BANKRUPTCY CHAPTER 7
4. BANKRUPTCY CHAPTER 13
5. SMALL CLAIMS COURT
6. PARTNERSHIPS
7. LIMITED LIABILITY COMPANIES
8. INCORPORATING A SMALL BUSINESS
9. NONPROFIT CORPORATIONS
10. POWERS OF ATTORNEY
11. NORTH AMERICAN FREE TRADE AGREEMENT (NAFTA)

Each of these books is different from other legal books on the market. The compendium does not dwell excessively upon the law; each volume quickly moves into basics and practice. These are practical books that tell the reader how to accomplish the desired results and provide detailed forms, examples and instructions. The volumes offer user-friendly, complete, practical knowledge in the discipline of the title of the book.

POINT TO BEAR IN MIND: A frequent comment concerning this series is that important information is mentioned several times throughout this book. This is not poor drafting but is intentional. It is not foreseen that these books will be read as novels, that is from beginning to end. Many readers will skip chapters to focus directly on the problems at hand. Therefore to assure that important information is not missed it is often repeated. Stating the material once in the book protected the author from any criticism that the book is incomplete. Stating it more often helps protects the reader from missing that information.

This chapter answers the questions and concerns most commonly asked by persons while attempting to decide whether or not to grant a power of attorney to another person. Powers of Attorney are important legal documents which effect the person creating them on a personal and financial basis. A power of attorney should not be granted indiscriminately. It should be exercised with concern for the particular needs and desires of the person granting the power of attorney.

A power of attorney is a written document wherein a person, called the "Principal," gives to another person, called the "Attorney-in-Fact," the authority to act on the principal's behalf. There are four types of powers of attorney. There is a general power of attorney by which a principal gives the attorney in fact all authority unconditionally to act on his behalf. There is a limited power of attorney, sometimes called a "special power of attorney," by which a principal gives the attorney in fact only limited authority to accomplish a certain purpose or transaction on the principal's behalf. There is a "durable power of attorney" for either a general or special financial purpose that will continue or activate upon the principal's mental incapacity. There is a "durable power of attorney for health care" that gives the right to the attorney in fact to make health care decisions for the principal if the principal is unable to do so.

In order for a power of attorney to be valid, it must be in writing and have been executed in accordance with applicable state law. As such, the laws of all states require a valid power of attorney to have been executed by a principal having the legal capacity to do so and in accordance with the state required formalities for a power of attorney.

Legal capacity to make a power of attorney means simply that the person is an adult, is aware that he is making a power of attorney and is not suffering from some mental aberration that renders his conduct questionable.

A person who has been adjudged incompetent by a court generally will not, under the laws of most states such as New York and California, be able legally to execute a power of attorney. A minority of states, such as Georgia, hold a power of attorney executed by a mentally incompetent is not automatically void but rather is voidable by the court.

If a principal is granted a power of attorney to only accomplish one particular purpose or do one particular thing, the power of attorney terminates when that special purpose or act is accomplished. When the specific purpose for which the power of attorney was granted is accomplished, the termination of the power of attorney occurs regardless of whether the termination date in the power of attorney document has expired. To have such an automatic and self-executing termination of the power of attorney, the power of attorney instrument must state both the purposes of the power of attorney and what it will take to accomplish them.

Courts have repeatedly recognized that the power of attorney ends when there is no longer any act remaining to be done to accomplish the purpose for which it was granted. Example: A power of attorney to sell a house. Once the house is sold, the power lapses. The attorney in fact would not have authority to do anything else even though the expiration date in the power of attorney has not arrived.

A common concern is often voiced as to what would happen if the power of attorney document is lost or accidentally destroyed and cannot be produced. Under general probate law, for example, if a Will is lost or destroyed, it is presumed to have been revoked.

That presumption does not apply to powers of attorney. A power of attorney is not created by virtue of the document but rather by the will and desire of the principal. Thus, the mere loss of the document does not cause its termination or lapse. In such an event, it might become difficult to convince third parties that a power of attorney was originally granted but that is a practical matter. From a legal standpoint, the power of attorney still remains legal, valid and in force even though the original instrument cannot be produced.

Once a principal files for bankruptcy relief, an attorney in fact is automatically divested of any authority to deal in any way with property that is under the jurisdiction of the bankruptcy court. This loss of authority occurs automatically and without the necessity of notice. Mere insolvency of the principal will not terminate the power of attorney provided the principal's property has not been seized or attached pursuant to the law. Likewise, the appointment of a state receiver for the principal's property does not terminate the power of attorney even though the receiver may limit full exercise of it.

It is possible for two or more persons to execute a joint power of attorney. Such powers of attorney are most often utilized by married couples. A joint power of attorney basically gives each party the right to act on the other party's behalf to the extent covered in the power of attorney document. A joint power of attorney can either be limited or general in scope. For example, when the sale of real property is involved, the effect of a joint power of attorney is construed as authorization for the Attorney in Fact to convey the interest of either or both of the principals in the property. For a married couple, a joint power of attorney is construed as authorizing either attorney in fact (spouse) to sell all of the property (both spouses' interest).

Joint powers of attorney are executed the same as a single power of attorney. The biggest drawback with a joint power of attorney is that if one principal subsequently wishes to change the power of attorney, it would, in most states, invalidate the other principal's [power of attorney at the same time. Given the ease with which powers of attorney can be created and tailored made to each individual, there is not much justification for doing a joint power of attorney.

A general power of attorney lapses (becomes invalid) at the moment the principal dies or becomes mentally incompetent. At the moment when it is needed most, a general power of attorney becomes invalid and the right of the attorney in fact to act for the principal ceases, lapses and terminates. In all states except Louisiana and Pennsylvania, a general or limited power of attorney lapses immediately upon the principal becoming mentally incompetent. Upon this automatic termination of general and limited powers of attorney, the court appoints a conservator or guardian for both the person and his estate. Allowing a general power of attorney to remain in effect would impair the ability of the conservator or guardian to manage the affairs of the estate and provide for the incompetent principal. Most states have adopted the Uniform Durable Power of Attorney Act, the Uniform Probate Code or have enacted their own legislation to permit durable powers of attorney that remain in force throughout the principal's period of mental incapacity.

When a power of attorney states a specific termination date, that date will control the termination. The right of the attorney in fact to act for the principal will lapse on the expiration of the stated date. In the case of durable powers for health care (discussed in Chapter 4), many states limit by statute the period of time in which an attorney in fact can make health care decisions for a principal (in California it is seven years).

In most states, acts by an attorney in fact that are undertaken on the principal's behalf without knowledge of the principal's death are valid and binding on the principal's estate. An affidavit executed by the attorney in fact stating that he did not have actual knowledge of its termination by revocation or by death or incapacity at the time of exercise is conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is also recordable.

A general power of attorney is an express grant of authority to the attorney in fact to do anything for the principal. This is the type of power of attorney most often given by a parent to a child or a brother to another brother or sister. This is the greatest expression of trust that a person may show. The holder of a general power of attorney vests the attorney in fact will full and complete authority to transact any and all business for the principal. The authority conferred on the attorney in fact is, by implication, as total and as complete as necessary to perform every type of business for the principal.

Whatever an attorney in fact does under a general power of attorney, he is still doing it for the principal. A general power of attorney does not give the attorney in fact the right or authority to do acts for his own benefit but remains limited to performing acts for the use and benefit of the principal.

The grant of authority to the attorney in fact to act for the principal is construed from the language contained in the power of attorney. In a situation where the scope and grant of authority is unclear, the court will determine the meaning of an ambiguity in accordance with the intent of the parties at the time of the granting of the power. The authority that the power of attorney bestows upon the attorney in fact is not to be extended by implication beyond those powers specified therein unless absolutely necessary to complete those powers that are specifically stated. The scope and breadth of any grant of authority will be strictly construed. This rule of strict construction requires that any act by an attorney in fact must be one that is specifically authorized to be done. A principal is not bound by any act in excess of the authority granted the attorney in fact by the power of attorney.

A limited power of attorney is also called a special power of attorney. This power of attorney is so named to reflect the limited scope of authority that is granted and the limited purpose sought to be accomplished. The only authority granted to the attorney in fact is that needed to accomplish the specific purpose stated in the power of attorney instrument. A specific power to do something for a principal is called an "express grant of authority." Such a specific grant of authority is limited only by the stated purpose of the power of attorney. The rule of construction is that general grants of authority are usually limited and controlled by the stated terms and purposes of the power of attorney. Where a power of attorney bestows authority to accomplish specific goals for the principal and the attorney exercises general grants of authority, the courts will limit the grants of authority to acts needed to accomplish the specific goals of the power of attorney.

The authority granted by a limited power of attorney cannot be extended to accomplish purposes not stated in the power of attorney. When a power of attorney contains both general and specific grants of authority, the general grants carry no greater powers than the specific grants of authority. While the grants of authority under a power of attorney will be strictly construed, certain authority may nevertheless be implied to perform the express purpose of the power of attorney. Courts interpreting a power of attorney attempt to clarify and reconcile competing clauses to achieve the stated purpose of the power of attorney. To determine if a particular act undertaken by the attorney in fact is authorized, the court looks at the type of act in question. The stated authorities in the power of attorney will be considered together rather than separately.

As with a general power of attorney, a limited power of attorney lapses upon the death or mental incapacity of the principal. A limited power of attorney also terminates automatically when the purpose for which it was issued has been satisfied. For example, a limited power of attorney is granted by father to son giving the son the right to sell father's house. Once the house is sold, the power of attorney terminates. The son would not have the power to sell the next house his father may purchase.

A durable power of attorney is a specialized type of power of attorney that remains in full force and effect during any period of mental incapacity of the principal. A durable power of attorney has the effect of eliminating the need for a voluntary conservatorship or a guardianship of the principal and the principal's estate. A durable power of attorney can give the attorney in fact the power to make decisions of any type or just those specific decisions relating to health care if the principal is unable to do so.

Many states have approved statutory forms for durable powers of attorney. The use of these forms is not mandatory as long as the form actually used contains the same basic information. The use of a statutory form is recommended over a nonstatutory form because there is less chance of a dispute about the meaning and intent of the clauses contained in the forms. Chapter 4 contains the statutory durable powers of attorney for health care forms for all of the states that have adopted one.

In addition, Chapter 4 contains the statutory form for a durable power of attorney for financial affairs that has been adopted by the following states: California, Illinois (the form is a combined health and financial affairs), Minnesota, New Mexico and New York. Most of the states that have adopted their own statutory durable power of attorney for health care form have not created a separate statutory form for a durable power of attorney for health care nor have they created a separate statutory form for a durable power of attorney for financial affairs. Even those states that have adopted a statutory power of attorney for financial care form do not mandate the use of their statutory forms in order to have a valid durable power of attorney. In contrast, most of the state which have statutory forms for durable power of attorney for health care do mandate the use of their forms. Chapter 4 contains a uniform durable power of attorney for financial affairs and a combined uniform durable power of attorney for both health care and financial affairs for use in those states permitting non-statutory forms. The statutory forms for health care are usually available in most business and stationary stores. The cost for statutory forms usually is $2.00 and is the cheapest peace of mind that can be purchased.

A durable power of attorney for financial affairs is exactly what the name states. It is a power of attorney to handle the financial affairs of the principal during the time that he is incompetent. Such a power of attorney is limited only to financial affairs and does not extend to making health care decisions. If a durable power of attorney for financial affairs is limited in scope and a matter arises that is not covered by the power of attorney, a conservatorship or guardianship must be opened to handle it. This, of course, is the very situation for which the durable power of attorney is designed to avoid. One advantage of a durable power of attorney is that it is possible for a principal to give to more authority and power to the attorney in fact than a court would give a guardian or conservator. The reason for this is that the court usually wants to limit the scope of a person authority to act for another without court approval.

It is possible for a Principal to give a power of attorney to more than one attorney in fact. Often, a principal may give one attorney in fact the right to care for the principal's person and the other attorney in fact is given the power to manage the principal's estate. In addition, a principal may give one attorney in fact a limited durable power of attorney whereas the another attorney in fact might have a general durable power of attorney.

A durable power of attorney can have a clause in the instrument that states that the power of attorney does not become effective until and unless the principal becomes incompetent. This is a safety feature that prevents the attorney in fact from acting for the principal until it is proven that the principal is incompetent. It is called a "springing power of attorney" because it "springs" into force only when the principal is declared incompetent. The declaration of mental incapacity is usually defined in a clause that requires two or more medical doctors to diagnose the principal as incompetent. A notable disadvantage of a springing durable power of attorney is that there is no one authorized to make valid business and health decisions for the principal during the period of time that the principal is incompetent and before the doctors make the necessary diagnosis.

Unless the power of attorney requires the attorney in fact to render annual accountings, it is usually not required. North Carolina is unique. It requires an attorney in fact of financial affairs to file an annual accounting with its court: the principal can waive any required accountings provided he is legally competent.

*** END OF SAMPLE VIEW OF THIS SECTION ***

This chapter covers the elements and characteristics that are common to all are general, limited and durable powers of attorney. This chapter introduces the reader to the basic operation of powers of attorney, the duties and responsibilities of the attorney in fact and the effects of the power of attorney on third parties.

The subsequent chapters discuss general and limited powers of attorney, durable powers of attorney for financial purposes and durable powers of attorney for health care. These chapters will address the law that specifically administers these types of powers of attorney.

The simplest definition of a power of attorney is a written authorization given by one person, known as the principal, to another person called an agent or attorney in fact, to perform specified acts on behalf of the principal. Another name for a power of attorney is a "Letter of Attorney" which means the same.

An attorney in fact is not to be confused with an attorney at law. The California case People vs. Malone 232 Cal.App.2d 531 confirmed that difference when it stated that an attorney at law and attorney in fact were different by both definition and custom. A power of attorney does not, the court held, empower an attorney in fact to act as an attorney at law for the principal. To do otherwise, the court reasoned, would be to destroy the State Bar Act and its licensing and quality standards.

The creation of a power of attorney does not prove authority, as between agent and principal; instead it proves the existence of the agency arrangement to third persons with whom the agent will be dealing on the principal's behalf. A power of attorney is by law a specific grant of authority to the attorney in fact to act for the principal within the terms of the power of attorney. It is a grant of authority on which third persons can rely in dealing with the attorney in fact.

In order of a power of attorney to be valid, it must have been executed in accordance with the applicable state law. All states require that a valid power of attorney be executed by a principal having legal capacity to do so and in accordance with state-required formalities for a power of attorney.

By legal capacity, it is meant the person meets the same legal standards as someone creating a will. The definition for legal capacity requires that the person understand the nature, quantity and quality of his affairs, the natural objects of his affection (his family members) and not be affected by any insane delusions affecting these aspects of his life.

Under the common law, a married woman was not permitted to create a power of attorney, even jointly with her husband. The reason behind this prohibition was that, under the common law, the husband was totally responsible for the care and support of the wife. This duty was not assignable or transferrable to anyone if the wife wanted it to be. The view was that since the husband was responsible for all the debts of the wife and the wife should not be able to grant a power to a third party that conceivably could result in a greater liability to the husband. The old common law bar against a married woman creating a power of attorney has been abolished. A married woman can grant a power of attorney to a person other than her husband.

Several states hold that a power of attorney executed by a person judged mentally incompetent is not void but is voidable by a court after an appropriate hearing. A person who has been judged incompetent by a court is still able to execute a legal power of attorney under the laws of most states (such as New York and California). A power of attorney executed by a mental incompetent is not automatically void but is voidable by the court in a minority of states (such as Georgia).

Most states require no specific form to be followed to create a valid power of attorney provided the general requirements are met. All powers of attorney require:

1. The document contain language stating that the principal is creating a power of attorney.
2. An attorney in fact be named. By its very nature a power of attorney intends the attorney in fact to act when the principal is not present. The power of attorney is the sole document of authority for the attorney in fact; it must display enough information to prove its genuineness. The power of attorney must be clear and certain in its grant of authority to the attorney in fact. The scope and authority of the attorney in fact to act on behalf of the principal derives from the language of the power of attorney and must be stated concisely.
3. The purpose of the power of attorney be stated.
4. The express powers and authority of the attorney in fact be stated.
5. If a durable power of attorney is being created, the power of attorney must contain language to that effect.
6. The power of attorney must be notarized if it is a durable power of attorney.

Common law required a power of attorney to be executed under seal. Until recently, before copy machines, copies were unavailable and the original remained in the hands of the attorney in fact; the potential for fraud always existed. The requirements for having a power of attorney sealed no longer exist. Nearly all states have passed statutes that require powers of attorney that carry the right to sell or convey any interest in real property be notarized to be valid. Moreover, the principal's signature must be notarized as a requirement for recordation. Some states (such as Wyoming) hold that an attorney in fact appointed under an unacknowledged power of attorney (without notarization) is not able to sell or convey the principal's real property, but he can hold and accept property on behalf of the principal.

A notable exception to the fact that most states do not have specific forms for powers of attorney concerns durable powers of attorney for health care. Twenty-six states have adopted statutory forms for durable powers of attorney for health care. In these states durable powers of attorney for health care can be granted by merely executing the state's statutory form. In addition, most of these statutory forms are not mandatory as long as the actual form used is substantially the same. In contrast to durable powers of attorney for health care, no state has mandated statutory forms for financial durable powers of attorney although some suggest optional forms.

The grant of authority for the attorney in fact to act for the principal is construed from the language contained in the power of attorney. Where the scope and grant of authority is unclear, the court will determine the meaning of an ambiguity in accordance with the intent of the parties at the time of the granting of the power. The authority the power of attorney gives the attorney in fact is not to be extended by implication beyond those powers specified unless absolutely necessary to complete the productive use of those powers that are specifically stated.

The scope and breadth of any grant of authority will be strictly construed. This rule of strict construction requires that any act by an attorney in fact must be one specifically authorized to be done. A principal is not bound by any act by an attorney in fact that exceeds the authority granted by the power of attorney. For example, the Oregon case Brown vs. Laird 134 Or 150 held that a power to sell property does not carry with it the power to make a gift of the property.

While the grants of authority under a power of attorney will be strictly construed, certain authority may nevertheless be implied to complete the express purpose of the power of attorney. Courts interpreting a power of attorney attempt to clarify and reconcile competing clauses to achieve the stated purpose of the power of attorney. To determine if a particular act of an attorney in fact is authorized by the power of attorney, the court looks at the type of act and the stated authority in the power of attorney and considers them together as well as separately.

The authority granted to an attorney in fact is not always confined to performance of specific actions. This authority is rarely so limited. Yet, the attorney in fact must not exceed his grant of authority, even if it is broad and extensive. While exercising his authority the attorney in fact is permitted to do all things incident and necessarily subordinate to accomplishing the stated purpose of the power of attorney. Powers of attorney are deemed to grant such implied powers as are necessary to complete the designated objectives. Example: The power to sell property carries with it an implied grant of authority to execute a bill of sale for any property that is sold. Courts have held that a power of attorney granting authority to transact business of any kind carries with it the implied power to pay the principal's business debts.

A specific power to do something for a principal is called an 'express grant of authority.' Such a specific grant of authority is limited only by the stated purpose of the power of attorney. The rule of construction is that general grants of authority are usually limited and controlled by the stated terms and purposes of the power of attorney. Where a power of attorney bestows upon the attorney the authority to accomplish specific goals for the principal and general grants of authority are used, the court will limit the grants of authority to acts needed to accomplish the specific goals of the power of attorney. Simply stated the authority granted, regardless how broad the grant, in a power of attorney cannot be extended to accomplish purposes not stated in the power of attorney. When a power of attorney contains both general and specific grants of authority, the general grants carry no greater powers than the specific grants of authority. The United States Supreme Court, Wright vs. Ellison 1 Wall (US) 16 stated that a general power of attorney is restricted as well as enlarged by the original intent of the parties. An express grant to an agent of authority to do any and every act under a power of attorney for the limited purpose of selling a house will not give the attorney in fact the authority to do anything but sell the house. The agent would not be able to sell the principal's stocks and bonds despite the language of the express grant. The legal treatise "Restatement, Agency section 37" holds that the specific authority to do certain acts tends to show that a more general grant of authority is not intended.

The situation in a general power of attorney is different. A general power of attorney vests the attorney in fact with full and complete authority to transact any and all business for the principal. The authority conferred on the attorney in fact is as total and as complete as necessary to perform every type of business for the principal. Whatever an attorney in fact does under a general power of attorney, he is still doing it for the principal. A general power of attorney does not give the attorney in fact the right or authority to do acts for his own benefit but remains limited to performing acts for the use and benefit of the principal.

Ambiguities in the exercise of powers of attorney are strictly construed. Ambiguities may arise either in the language of the power of attorney or in the facts surrounding the exercise of the power. When the language of the power of attorney is ambiguous, courts will interpret the language against the principal. The reason for this interpretation is that the principal created the power of attorney and any ambiguity as to language is always interpreted against the creator of the document. Under the legal treatise "Restatement, Agency section 42," it is stated that where the authority granted is not ambiguous then the power is reasonably interpreted, but it asserts that where an agent's authority is ambiguous, the interpretation by the agent is controlling.

Under "Restatement, Agency section 34," when an ambiguity arises because of facts outside the power of attorney and neither the principal nor the attorney in fact knew of it when the power of attorney was executed, the attorney in fact has the inherent authority to act pursuant to the course of action that he perceives would have been the intent of the principal. Under this rule of construction (followed in a minority of states), the principal bears the responsibility and liability for reasonable mistakes made by the attorney in fact caused by his interpretation of the authority as a result of facts he did not know when the power of attorney was executed.

As stated above, the rules of strict construction and purpose cover the interpretation of a power of attorney. Courts have repeatedly stated the premise that in the absence of ambiguity or incompleteness a power of attorney is governed by the expressed intent of the parties. When there is doubt as to the intent of the parties, parol evidence (which is extrinsic and explanatory evidence) may be used in certain situations. The legal treatise "Restatement, Agency section 44" holds that such parol evidence should be admitted in court to show any special situations of the parties or the property, industry standards, or other facts that have a bearing on the interpretation of the power of attorney.

The "equal dignities rule" is a rule of construction regarding the authority granted in powers of attorney. This rule states that where the law requires a contract to be in writing to be enforceable, the agent's authority to enter the contract must also be in writing to be enforceable. Therefore, for an agent to enter a contract that must be written to be enforceable, the authority for the agent (the attorney in fact) to perform that act must be specifically stated in the power of attorney. Contracts required to be in writing to be enforceable are determined by a state's statute of frauds. Contracts required to be in writing are those for the sale of goods over $500, those relating to an interest in real property, or contracts which require over one year to be performed.

An attorney in fact violates the equal dignities rule by signing a contract required to be in writing without specific authorization in the power of attorney; the principal will not be bound by the contract. The equal dignities rule does not apply where the principal merely authorizes the attorney in fact to sign, pursuant to the direction of the principal, the principal's name to a contract required to be in writing; the act of the attorney in fact does not amount to making a contract.

Normally, a power of attorney will continue in effect for as long as the term stated in the instrument. If there is no expiration date in the power of attorney instrument, the authority to act for the principal will continue until the principal's death or mental incapacity or his revocation of the power of attorney unless limited by statute. The burden of proof that a power of attorney is no longer in effect rests solely with the person who is asserting the claim.

Generally, unless a power of attorney contains a time limitation, it will last until it is revoked or terminated or the principal dies. When a power of attorney states a specific termination date, that date will control the termination of the power. When the power of attorney states a specific termination date, the right of the attorney in fact to act for the principal will lapse on the stated date. In the case of durable powers of health care, many states limit by statute the period of time an attorney in fact can make health care decisions for a principal (it is seven years in California). The reason for the statutory limitation on a power of attorney is to prevent from someone acting on behalf of a power of attorney granted many years earlier which the principal may have forgotten about.

The legal treatise, "Restatement", Agency section 105 states that if a principal allows an attorney in fact to act on his behalf after the expiration of the power of attorney, a rebuttable presumption is created that the acts undertaken by the former attorney in fact are ratified.

Ambiguities arise when the power of attorney does not contain an expiration date or is otherwise uncertain on the matter. Most states hold that a power of attorney is effective until it expires or is revoked. Some states have held that powers of attorney without a termination date will be given effect only for a reasonable time which is determined by the circumstances of each individual case. This situation usually arises in a family setting where a parent may have given a child a power of attorney and twenty years later the parties wonder if it is still effective.

In the situation where a power of attorney is granted to accomplish one particular purpose or transaction, the power of attorney terminates upon the accomplishment of that special purpose or transaction. Termination occurs whether or not the termination date in the power of attorney has expired. To have such automatic and self-executing termination of the power of attorney, the power of attorney instrument must be clear and unambiguous in stating what the purposes are and what it will take to accomplish them.

The legal treatise, "Restatement", Agency section 109 holds that the authority of an agency is terminated once the attorney in fact becomes aware of a change in the principal's business (such as the accomplishment of the stated purpose of the power of attorney) from which he should infer that the principal would not consent to further exercise of his authority.

Courts have repeatedly recognized that the power of attorney ends when there is no longer any act required to accomplish the specific purpose of the power of attorney. Example: A power of attorney given to sell a house. Once the house is sold, the power lapses. The attorney in fact would not have the authority to do anything else even though the expiration date in the power of attorney has not arrived.

Occasionally the power of attorney document is lost or destroyed. The question then arises as to whether or not the power of attorney is terminated. If it is a will that is lost or destroyed it is presumed to have been revoked. That presumption, however, does not apply to powers of attorney. A power of attorney is not created by virtue of the document; it is created by the will and desire of the principal.

As such, the mere loss of the power of attorney document does not cause it to terminate. It may be difficult to convince third parties that a power of attorney was originally granted, but that is a practical matter. The power of attorney still remains legal, valid and in force even though the original instrument cannot be produced.

Once a principal files for bankruptcy relief, an attorney in fact is automatically divested of any authority to deal with property that is under the jurisdiction of the bankruptcy court. This loss of authority occurs automatically and without the necessity of giving notice.

"Restatement", Agency section 114 asserts that the principal's bankruptcy or substantial impairment of his assets of which the agent may have notice should operate as a termination of the attorney in fact's authority to act for his principal as to those assets placed into bankruptcy or otherwise substantially impaired.

Most states hold that the mere insolvency of the principal will not terminate the power of attorney provided the principal's property has not been seized pursuant to the law. It has been held that the appointment of a state receiver for the principal's property does not in itself terminate the power of attorney even though it is a limited power of attorney.

Just as a legally competent principal can create a power of attorney, he can revoke it at any time. The only requirement is the principal be legally competent at the time of the revocation. The effect of the principal's legal competency regarding revocation is quite interesting. Once the principal becomes mentally incompetent (in most states with the exceptions of Louisiana and Pennsylvania), a general or limited power of attorney will immediately terminate. The subsequent mental incapacity of the principal will not affect a durable power (which continues in effect during the period of the principal's mental incapacity).

An effective revocation requires that the principal give notification (preferably written) to the attorney in fact that the power of attorney is terminated on a certain date. In the termination notice, the principal should demand that any power of attorney assets held by the attorney in fact be returned to the principal by that date. The principal should attach a copy of the written termination to the power of attorney document. If the principal has recorded the power of attorney, the revocation must also be recorded to give constructive notice of the revocation to the world.

*** END OF SAMPLE VIEW OF CHAPTER ***

CHAPTER 3

There are four types of powers of attorney. There is a general power of attorney by which a principal gives the attorney in fact all the authority in the world to act on his behalf. There is a limited, sometimes called a special, power of attorney in which a principal gives the attorney in fact limited authority to accomplish a certain purpose or transaction on the principal's behalf. There is a durable power of attorney for either a general or special financial purpose that will continue or activate upon the principal's mental incapacity. There is a durable power of health care which gives the right to the attorney in fact to make health care decisions for the principal in the event that the principal is unable to do so.

This chapter deals just with general and limited powers of attorney. Chapter 4 will deal exclusively with durable powers of attorney. The purpose and use of general and limited powers of attorney will be discussed in this chapter. Included in this chapter are the forms for general and limited powers of attorney that can be used anywhere in the United States.

A general power of attorney is an express grant of authority to the attorney in fact to do anything for the principal. This is the type of power of attorney most often given by a parent to a child or a brother to another brother or sister. This is the greatest expression of trust that a person may show. The holder of a general power of attorney, as long as it is valid, has total power and control over the assets of the principal.

The reason behind the creation of a power of attorney is not to prove the authority between the agent (attorney in fact) and principal but to prove the existence of the agency arrangement to third persons with whom the agent will be dealing on the principal's behalf. A power of attorney is by law a specific grant of authority to the attorney in fact to act for the principal within the terms of the power of attorney on which third persons can rely in dealing with the attorney in fact.

The grant of authority to the attorney in fact to act for the principal is construed from the language contained in the power of attorney. In a situation where it is unclear as to the scope and grant of authority, the court will determine the meaning of an ambiguity in accordance with the intent of the parties at the time of the granting of the power. The authority that the power of attorney bestows on the attorney in fact is not to be extended by implication beyond those powers that are specifically stated. The scope and breadth of any grant of authority will be strictly construed. This rule of strict construction requires that any act by an attorney in fact must be one that is specifically authorized to be done. A principal is not bound by any act of an attorney in fact in excess of the authority granted under the power of attorney.

A general power of attorney vests the attorney in fact with full and complete authority to transact any and all business for the principal. The authority conferred on the attorney in fact is as total and as complete as necessary to perform every type of business for the principal.

Whatever an attorney in fact does under a general power of attorney, he is doing it for the principal. A general power of attorney does not give the attorney in fact the right or authority to do acts for his own benefit; he remains limited to performing acts for the use and benefit of the principal.

Except for Louisiana and Pennsylvania a general power of attorney automatically terminates once the principal becomes mentally incompetent. A durable power of attorney for financial affairs will continue in effect during the principal's period of mental incapacity. Bearing this difference between general and durable powers of attorney in mind, some principals may decide to use a general power of attorney rather that a durable power of attorney for one or both of the following reasons:

1. The principal might want court supervision of his estate if he becomes incompetent. In the absence of a durable power of attorney, once a person becomes incompetent a guardianship or conservatorship over that person's property must be opened to have someone legally authorized to manage that person's estate. Such a proceeding is expensive, and the actions of the person so appointed by the court remain under court supervision. Some people might feel more secure with their estate in the hands of the court.
2. A springing power of attorney might have been granted to someone else. A springing power of attorney is one that takes effect once the principal becomes incompetent. The general power of attorney lapses, and the durable power of attorney for financial affairs that was granted to the other party take effect.

Normally, a power of attorney will continue in effect for the term stated in the instrument. In the absence of an expiration date in the power of attorney instrument, the authority of the attorney in fact to act for the principal will continue until the death of the principal, the mental incapacity of the principal or the revocation of the power of attorney by the principal unless limited by a state statute. The burden of proving that a power of attorney is no longer in effect rests solely with the person who is asserting the power of attorney is no longer in effect.

Unless a power of attorney contains a time limitation it will last until it is revoked or terminated or the principal dies. When a power of attorney states a specific termination date, that date will control the termination of the power. Upon the arrival of the stated date, the right of the attorney in fact to act for the principal will lapse. In the case of durable powers of health care (discussed in Chapter 4), many states limit by statute the period of time that an attorney in fact can make health care decisions for a principal (in California it is seven years).

The legal treatise "Restatement, Agency section 105" states that when a principal continues to allow an attorney in fact to act on his behalf after the expiration of the power of attorney, a rebuttable presumption is created that the acts undertaken by the former attorney in fact are ratified.

The general rule followed by nearly all states is that a general or limited power of attorney lapses immediately upon the principal becoming mentally incompetent. The two exceptions to the general rule are in Louisiana and Pennsylvania; they hold that such general or limited powers of attorney continue in effect unless the power of attorney states otherwise. Traditionally under the laws of most states when a person became incompetent the court would appoint a conservator or guardian for both the person and his estate. Allowing a general power of attorney to remain in effect would interfere and impair the ability of the conservator or guardian to manage the affairs of the estate and provide for the incompetent principal.

Within the last 15 years, all of the states have come to realize that it is not always necessary to require a conservator or guardian to be appointed for an incompetent if the person has taken care to prepare for this eventuality. These states have either the Uniform Durable Power of Attorney Act or the Uniform Probate Code. Each of these acts permits a person to grant an attorney in fact the power of attorney to act on the principal's behalf, including the making of health care decisions, after the principal has become mentally incompetent.

Just as a legally competent principal can create a power of attorney, he can at any time revoke it. The only requirement is that the principal be legally competent at the time of the revocation. The effect of the principal's legal competency on revocation is quite interesting. Once the principal becomes mentally incompetent in most states with the (except Louisiana and Pennsylvania), a general or limited power of attorney immediately terminates. The subsequent mental incapacity of the principal will not affect a durable power; it continues in effect during the period of the principal's mental incapacity.

An effective revocation requires that the principal give notification (preferably written) to the attorney in fact that the power of attorney terminates on a certain date. In the revocation notice, the principal should demand that any power of attorney assets held by the attorney in fact be returned to the principal by the date of revocation. The principal should attach a copy of the written revocation to the power of attorney document. If the principal has recorded the power of attorney, then the revocation of the power of attorney must also be recorded to give constructive notice of the revocation to the world.

Following is a general power of attorney specifically granting the attorney in fact the power to do virtually anything for the principal. If less than a full general power of attorney is being granted then a limited power of attorney should be utilized. A form for a limited power of attorney follows the next section. Usually, a power of attorney need not be recorded. Sometimes, however, state law requires recordation when certain powers, usually the authorization to sell land, is granted.

RECORDING REQUESTED BY

WHEN RECORDED MAIL TO

___________________________________________________________________________________ SPACE ABOVE LINE FOR RECORDER'S USE

KNOW ALL MEN BY THESE PRESENTS, that I, ________________________________________residing at ___________________________________do declare this to be a GENERAL POWER OF ATTORNEY.

I hereby revoke all prior powers of attorney regardless of the type and to whom they may have been given.

I hereby nominate, constitute and appoint _______________________________ whose address and telephone number is:_________________________________________________________________________________ ______________________________________________________________________________________________________________________________________________________________________________ as my true and lawful attorney in fact, for me and in my name, place and stead, and for my use and benefit, to exercise the following powers:

(1) Subject to any limitations in this document, I hereby grant to my agents full power and authority to act for me and in my name, in any way which I myself could act, with respect to the following matters to the extent that I am permitted to act through an agent:

(a) Real estate transactions.

(b) Tangible personal property transactions.

(c) Bond, share, and commodity transactions.

(d) Financial institution transactions.

(f) Insurance transactions.

(g) Retirement plan transactions.

(h) Estate transactions.

(i) Claims and litigations.

(j) Tax matters.

(k) Personal relationships and affairs.

(l) Benefits from military service.

(m) Records, reports and statements.

(n) Full and unqualified authority to my agents to delegate any and all of the foregoing powers to any person or persons whom my agents shall select.

(2) To ask, demand, sue for, recover, collect, and receive such sums of money, debts, dues, accounts, legacies, bequests, interest, dividends, annuities and demands whatsoever as are now or shall hereafter become due and payable or belonging to me and have, use and take by all lawful ways and means in my name or otherwise and to compromise and agree to acquittances or other sufficient discharges for the same.

*** END OF SAMPLE VIEW OF THIS SECTION ***

A limited power of attorney is also called a "special power of attorney." The name reflects the limited scope of authority that is granted along with the limited purpose sought to be accomplished. The only authority granted to an attorney in fact is that needed to accomplish the specific designated purpose in the power of attorney instrument. A specific power to do something for a principal is called to as an "express grant of authority." A specific grant of authority is limited and controlled by the stated terms and purposes of the power of attorney.

The rule of construction is that general grants of authority are limited and controlled by the stated terms and purposes of the power of attorney. If a power of attorney grants the attorney the authority to accomplish specific goals for the principal and general grants of authority are used, the courts will limit the grants of authority to acts needed to accomplish the specific goals of the power of attorney. When a power of attorney contains both general and specific objectives, each objective is impliedly granted only the authority needed to complete it. The legal treatise "Restatement, Agency section 37" holds that the specific authority to do certain acts tends to show that a more general grant of authority is not intended.

While the grants of authority in a power of attorney will be strictly construed, certain authority may nevertheless be implied to complete the express purpose of the power of attorney. Courts when interpreting a power of attorney attempt to clarify and reconcile competing clauses to achieve the stated purpose of the power of attorney. In determining whether a particular act undertaken by an attorney in fact is authorized by the power of attorney, the court looks as the type of act in question, the stated authority in the power of attorney and will consider them together rather than separately.

The authority granted to an attorney in fact is not always confined to performance or specific actions. The authority is rarely so limited. When exercising his authority the attorney in fact may not exceed his grant of authority. While exercising his authority powers, the attorney in fact is permitted to do all incident and necessary subordinate acts to accomplish the stated purpose of the power of attorney. Powers of attorney are deemed to grant implied powers necessary to complete expressed grants of authority. The power to sell property carries with it an implied grant of authority to execute a bill of sale for any property that is sold. Courts have held that where a power of attorney granted authority to transact business of any kind it also carried with it the implied power to pay the principal's business debts.

As with a general power of attorney, a limited power of attorney lapses upon the death or mental incapacity of the principal. The general rule followed by nearly all states is that a general or limited power of attorney lapses immediately upon the principal becoming mentally incompetent. The two exceptions to the general rule are Louisiana and Pennsylvania; both hold that such general or limited powers of attorney continue in effect unless the power of attorney states otherwise. Traditionally under the laws of most states the court appoints a conservator or guardian for both the person and his estate when a person becomes incompetent. Allowing a general power of attorney to remain in effect would impair the ability of the conservator or guardian to manage the affairs of the estate and provide for the incompetent principal. A limited power of attorney also terminates automatically when the purpose for which it was issued has been satisfied. Example: A limited power of attorney is granted by a father to a son giving the son the right to sell the father's house. Once the house is sold, the power of attorney terminates. The son does not have the power to sell the next house his father may purchase.

Following immediately is the form for a limited power of attorney that is acceptable throughout the United States. Usually, a power of attorney need not be recorded. Sometimes, however, state law requires recordation when certain powers, usually the authorization to sell land, is granted.

RECORDING REQUESTED BY

WHEN RECORDED MAIL TO

_________________________________________________________________________________ Space above the line is for Recorder's use

I, _________________________________________of ___________________________, CITY_______________________ COUNTY____________________ STATE _________________ hereby appoints______________________________ of __________________________________, CITY _______________________ COUNTY____________________ STATE _________________ as my SPECIAL ATTORNEY IN FACT to act in my place and stead for the purposes of ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________

I specifically grant to my SPECIAL ATTORNEY IN FACT the authority to do any act and execute any document that is both necessary and proper to accomplish the purposes of this LIMITED POWER OF ATTORNEY, except for the following: _________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________

*** END OF SAMPLE VIEW OF THIS CHAPTER ***

A general power of attorney is a written document wherein a person called the "principal" gives to another person called the "attorney in fact" the authority to act on the principal's behalf. A general power of attorney lapses and becomes invalid at the moment the principal becomes incompetent. At the time it is needed most a general power of attorney becomes invalid and the right of the attorney in fact to act for the principal ceases, lapses, and terminates. This has always been the criticism of a general power of attorney.

To address this situation most states have adopted the Uniform Durable Power of Attorney Act or the Uniform Probate Code or have enacted their own legislation to permit durable powers of attorney.

A. UNIFORM DURABLE POWER OF ATTORNEY ACT

The Uniform Durable Power of Attorney Act was adopted by the following jurisdictions:

ALABAMA CALIFORNIA DIST. OF COLUMBIA DELAWARE

IDAHO INDIANA KANSAS MISSOURI

MONTANA MASSACHUSETTS NEBRASKA N. DAKOTA

PENNSYLVANIA TENNESSEE SOUTH CAROLINA VERMONT

VIRGIN ISLANDS WEST VIRGINIA WISCONSIN

The following is the Uniform Durable Power of Attorney Act as adopted by California. This is basically the same form of the Act that was adopted by the other states. It is stated here for reference purposes.

(the form of the California act is very similar, if not identical, to the Uniform Acts adopted in other states. All references are to the Civil Code of California.)

A durable power of attorney is a power of attorney by which a principal designates another his attorney in fact in writing and the writing contains the words "This power of attorney shall not be affected by subsequent incapacity of the principal," or "This power of attorney shall become effective upon the incapacity of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent incapacity.

Where a durable power of attorney gives an attorney in fact the power to exercise voting rights, a proxy given by the attorney in fact to another to exercise the voting rights is subject to all the provisions of law applicable to such proxy and is not a usable power of attorney subject to this Article.

All acts done by the attorney in fact pursuant to a durable power of attorney during any period of incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his successors in interest as if the principal were competent.

(a) If, following execution of a durable power of attorney, a court of the principal's domicile appoints a conservator of the estate, or other fiduciary charged with the management of all of the principal's property or all of his property except specified exclusions, the attorney in fact is accountable to the fiduciary as well as the principal. The fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if he were not incapacitated, but if a conservator is appointed by a court of this state, the conservator can revoke or amend the power of attorney only if the court in which the conservatorship is pending has first made an order authorizing or requiring the fiduciary to revoke or amend the durable power of attorney to the fact to make health care decisions, as defined in Section 2430 for the principal.

(b) A principal may nominate, by a durable power of attorney, a conservator of the person or the estate of both, or a guardian of the person or estate or both, for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced. If the protective proceedings are conservatorship proceedings in this state, the nomination shall have the effect provided in Section 1810 of the Probate Code, whether or not such writing is a durable power of attorney.

(a) The death of a principal who executed a written power of attorney, durable or otherwise, does not revoke or terminate the agency as to the attorney in fact or other persons who, without actual knowledge of the death of the principal, act in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds successors in interest of the principal.

(b) The incapacity of a principal who has previously executed a written power of attorney that is not a durable power of attorney does not revoke or terminate the agency as to the attorney in fact or other persons who, without actual knowledge of the incapacity of the principal, act in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his successors in interest.

As to acts undertaken in good faith reliance thereon, an affidavit executed by the attorney in fact under a power of attorney, durable or otherwise, stating that he did not have at the time of the exercise of the power actual knowledge of the termination of the power by revocation or by the principal's death or incapacity is conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is likewise recordable. This section does not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event or other than express revocation or a change in the principal's capacity.

This Article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this Article among states enacting it.

This Article may be cited as the Uniform Durable Power of Attorney Act.

If any provision of this Article or its application to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of the Article which can be given effect without the invalid provision or application, and to this end the provisions of this Article are severable.

The Uniform Probate Code has been adopted by the following states:

ALASKA ARIZONA COLORADO CONNECTICUT

HAWAII IOWA KENTUCKY MAINE

MARYLAND MICHIGAN MINNESOTA

NEVADA NEW JERSEY NEW MEXICO

NEW YORK OHIO OREGON

RHODE ISLAND SOUTH DAKOTA UTAH

WASHINGTON WYOMING

Section 5 of the Uniform Probate Code is the pertinent provision that authorizes durable powers of attorney and reads as follows:

Whenever a principal designates another his attorney in fact or agent by a power of attorney in writing and the writing contains the words "This power of attorney shall not be affected by disability of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable by him as provided in the power on behalf of the principal notwithstanding later disability or incapacity of the principal at law or later uncertainty as to whether the principal is dead or alive. All acts done by the attorney in fact or agent pursuant to the power during any period of disability or incompetence or uncertainty as to whether the principal is dead or alive have the same effect and inure to the benefit of and bind the principal or his heirs, devisees and personal representative as if the principal were alive, competent and not disabled. If a conservator thereafter is appointed for the principal, the attorney in fact or agent, during the continuance of the appointment, shall account to the conservator rather than the principal. The conservator has the same power the principal would have had if he were not disabled or incompetent to revoke, suspend, or terminate all or any part of the powers of attorney or agency.

(a) The death, disability, or incompetence of any principal who has executed a power of attorney in writing other than power described in Section 5-501, does not revoke or terminate the agency as to the attorney in fact, agent or other person who, without actual knowledge of the death, disability, or incompetence of the principal, acts in good faith under the power of attorney or agency. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his heirs, devisees and personal representative.

(b) An affidavit, executed by the attorney in fact or agent stating that he did not have, at the time of doing an act pursuant to the power of attorney, actual knowledge of the revocation or termination of the power of attorney by death, disability or incompetence, is, in the absence of fraud, conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power requires execution and delivery of any instrument which is recordable, the affidavit when authenticated for record is likewise recordable.

(c) This section shall not be construed to alter or affect any provision for revocation or termination contained in the power of attorney.

All states have enacted some type of legislation authorizing the use of durable powers of attorney for financial affairs. Most of these states have also created their own statutory forms for durable powers of attorney for health care. These forms, where their use is mandatory or whose requirements significantly differ from the basic form in this book, are included at the end of this chapter. It is recommended that the reader compare his individual state durable power of attorney for health care form to decide whether to use it rather than the basic form contained in this book.

A durable power of attorney is a special type of power of attorney. It contains specific language stating that the principal intends for the power of attorney to remain in full force and effect during any period of mental incapacity that may afflict the principal.

A durable power of attorney has the effect of eliminating and replacing the necessity of a voluntary conservatorship or a guardianship of either or both the Principal and the Principal's estate. A durable power of attorney can also give the attorney in fact the power to make decisions of any type or just specific health care decisions when the principal is unable to do so.

Many states have approved statutory forms for durable powers of attorney. Usually the use of these forms is not mandatory as long as the form actually used contains the same basic information. The use of a statutory form is recommended over a nonstatutory form because there is less chance of a dispute concerning the meaning or intention of clauses contained in the forms. Virtually all states have adopted a durable power of attorney for health care act (sometimes called a medical health proxy or medical directive).

This chapter also contains a basic uniform durable power of attorney for health care form that can be used in those states that have not adopted a statutory form of their own or which do no requirement the use of their statutory form. It is always a good idea to consider the use of the statutory form if the state has one, even if it is not required, so as to limit potential attacks against its validity. Even so, the basic form, in this book, often presents the grant of authority and the Principal's wishes in a clear and more concise fashion that most optional statutory forms.

This chapter also contains the statutory form for a durable power of attorney for financial affairs that has been adopted by the following states: Alaska (the form is a combined form for both financial and health care), California, Connecticut (the form is combined for health and financial affairs), New Mexico (a combined form for both financial and health care). Most of the states that have adopted their own statutory durable power of attorney for health care form have not created a statutory form for a durable power of attorney for financial affairs. Even for those states that have adopted a statutory power of attorney for financial affairs form, the use of the statutory form is not mandatory.

This chapter contains a uniform durable power of attorney for financial affairs. It also contains a combined uniform durable power of attorney for both health care and financial affairs. Statutory forms for health care are available in most business and stationary stores. The cost for a statutory form is around $2.00 and is the cheapest piece of mind that can be purchased.

In all states except Louisiana and Pennsylvania a general or limited power of attorney lapses immediately on the principal becoming mentally incompetent. Traditionally under state law when a person became incompetent the court appointed a conservator or guardian for both the person and his estate. Allowing a general power of attorney to remain in effect would impair the ability of the conservator or guardian to manage the affairs of the estate and provide for the incompetent principal.

A general power of attorney gives the attorney in fact the authority to act on the principal's behalf and becomes invalid when it is needed the most, at the time the principal becomes incompetent. In order to be a valid durable power of attorney, the instrument must contain specific language stating the intent of the principal that the power of attorney will continue during the period of the principal's mental incapacity.

A durable power of attorney for financial affairs is exactly what the name states. It is a power of attorney to handle the financial affairs of the principal during the time that he is incompetent. This power of attorney is limited only to financial affairs and does not extend to making health care decisions. To make health care decisions for the principal, separate durable power of attorneys for health care or a combined financial and health care durable power of attorney must be executed. A durable power of attorney for financial affairs might be limited to specific purposes, but generally that is not the case. If a durable power of attorney for financial affairs is limited in scope and a matter arises that is included in the power of attorney, a conservatorship or guardianship must be opened, which was what the durable power of attorney was designed to avoid. It is possible for a principal to give to more than one attorney in fact a durable power of attorney. One attorney in fact might have a limited durable power of attorney; whereas the other attorney in fact might have a general durable power of attorney.

A durable power of attorney for financial affairs can have a clause in the instrument that states that the power of attorney does not become effective until and unless the principal becomes incompetent. This is a safety feature that prevents the attorney in fact from acting for the principal until it is proven that the principal is in fact incompetent. For this reason it is called a "springing" power of attorney because it "springs" into force only when the principal is declared incompetent. The declaration of mental incapacity is usually covered in a clause that requires two or more medical doctors to diagnose the principal as incompetent. A notable disadvantage of a springing durable power of attorney is that during the period of time the principal is incompetent and before the doctors make the necessary diagnosis, no one is authorized to make valid business and health care decisions for the principal.

A durable power of attorney lapses on the death of the principal or the arrival of the termination date in the durable power of attorney instrument, regardless of the principal's competency. The whole purpose behind durable powers of attorney is to have a person authorized to act on the principal's behalf when the principal becomes mentally incompetent. In reality, this is the time when such a power of attorney is most necessary. Under the Uniform Durable Power of Attorney Act, all acts undertaken by the attorney in fact after the death of the principal but while in ignorance of the principal's death are still valid contracts against the principal's estate.

In executing a power of attorney for financial affairs, the attorney in fact is usually not required to give the principal annual accountings unless required by the power of attorney instrument. A few states such as North Carolina require the attorney in fact to file an annual accounting with its court, but a competent principal can waive the requirement.

A major concern many people have over a durable power of attorney is that the attorney in fact may take and otherwise mismanage their assets, after their mental incapacity, and their beneficiaries will be helpless to stop it. This is never the case. The probate court always has jurisdiction to oversee every durable power of attorney regardless of whether or not such power is documented in the durable power of attorney document. No court will ever let an attorney in fact intentionally mismanage or steal assets over which he may have control by virtue of a durable power of attorney. Anyone can raise their concerns to the court, and the court will order a hearing to investigate the matter. All states permit concerned persons to petition the court to review the administration of a durable power of attorney. An attorney in fact is a fiduciary and owes the principal a fiduciary duty to act both reasonably and responsibly. If the court finds an attorney in fact has breached his duty of care, it will remove the attorney in fact and surcharge (find the attorney in fact liable) for all of the damages caused by the attorney in fact's misconduct. Even if the durable power of attorney document states otherwise, probate courts always have the power to review the actions of an attorney in fact for improper conduct. The court will never permit an attorney in fact to misuse the faith and power of his position and then hide behind the durable power of attorney document to avoid judicial scrutiny. Anyone can take their suspicions of abuse to the court, and those suspicions will be investigated.

Under the Uniform Durable Power of Attorney Act, if a court appoints a conservator or guardian for the estate of a person who has created a durable power of attorney for financial affairs, the attorney in fact becomes accountable to the court appointee as well as the principal. The court appointed conservator or guardian can also terminate the durable power of attorney.

As long as he is legally competent, the principal retains the power to revoke the power of attorney. If the attorney does not act in accord with the wishes of a competent principal, the power of attorney can be revoked, terminating the authority of the attorney in fact. All that is needed for an effective revocation is for the principal to notify the attorney in fact that the durable power of attorney is revoked on a certain date and to demand the durable power of attorney assets held by the attorney in fact be returned to the principal by the date of revocation. The principal simply affixes a letter to the durable power of attorney document stating the durable power of attorney is revoked effective the certain date. If the power was recorded, the revocation must also be recorded to give constructive notice of the revocation to the world.

An attorney in fact can always resign. When the attorney in act resigns, he is replaced in the same manner as though he had died. Many durable power of attorney instruments name a successor attorney in fact to replace a dead or resigning attorney in fact. If the durable power of attorney does not provide for a successor attorney in fact, the durable power of attorney will terminate on the death or resignation of the attorney in fact. In a few states, most notably North Carolina, before an attorney in fact can resign, he must provide a full accounting of the durable power of attorney business during the time that he served as agent. If legally competent, the principal may waive the accounting.

Only a legally competent person can serve as an attorney in fact. If an attorney becomes incompetent all of his subsequent actions on behalf of the principal are voidable. An incompetent person cannot create a valid contract. Many durable power of attorney instruments have language that a successor attorney in fact takes over when the attorney in fact becomes unable to perform the duties of the attorney in fact. Even is the principal is unable to replace the attorney in fact because he, himself is incompetent, the attorney in fact may nevertheless be removed.

Durable powers of attorney for financial affairs forms can be purchased at office supply or stationary stores. Some states (such as California) publish statutory forms for durable powers of attorney for financial affairs. The use of these forms is usually not mandatory to create a valid durable power of attorney.

KNOW ALL MEN BY THESE PRESENTS, that I, _______________________________ residing at _________________________________________do declare this to be a durable power of attorney.

This power of attorney shall not be affected by subsequent incapacity of the principal.

I hereby revoke all prior powers of attorney regardless of the type and to whom they may have been given.

I hereby nominate, constitute and appoint ________________________________whose address and telephone number is: ________________________________________________________________________________ _____________________________________________________________________________________

as my true and lawful attorney in fact, for me and in my name, place and stead and for my use and benefit to exercise the following powers:

This durable power of attorney shall become effective:

( ) Immediately upon execution of this durable power of attorney.

( ) Only after certification by two licensed physicians that I lack the mental capacity to make financial decisions for myself.

(1) Subject to any limitations in this document, I hereby grant to my agents full power and authority to act for me and in my name in any way that I myself could act with respect to the following matters to the extent that I am permitted to act through an agent:

(a)Real estate transactions.

(b) Tangible personal property transactions.

(c) Bond, share, and commodity transactions.

(d) Financial institution transactions.

(e) Business operating transactions.

(f) Insurance transactions.

(g) Retirement plan transactions.

(h) Estate transactions.

(i) Claims and litigations.

(j) Tax matters.

(k) Personal relationships and affairs.

(l) Benefits from military service.

(m) Records, reports and statements.

(n)I grant full and unqualified authority to my agents to delegate any and all of the foregoing powers to any person or persons whom my agents shall select.

(2) To ask, demand, sue for, recover, collect, and receive such sums of money, debts, dues, accounts, legacies, bequests, interest, dividends, annuities and demands whatsoever as are now or shall hereafter become due and owing payable or belonging to me and have, use, take all lawful ways and means in my name or otherwise for the recovery thereof by attachments, arrests, distress or otherwise and to compromise and agree to acquittances or other sufficient discharges for the same.

(3) For me in my name to make, seal and deliver, bargain, contract, agree for, purchase, receive and take lands, tenements and hereditaments and accept the possession of all lands and all deeds of assurance in the law therefor and to lease, let, demise, bargain, sell, remise, release, convey, mortgage and hypothecate lands, tenements and hereditaments on such covenants as they shall think fit.

(4) To sign, endorse, execute, acknowledge, deliver, receive and possess such applications, contracts, agreements, options, covenants, deeds, conveyances, trust deeds, security agreements, bills of sale, leases, mortgages, assignments, insurance policies, bills of lading, warehouse receipts, documents of title, bills, bonds, debentures, checks, drafts, bills of exchange, notes, stock certificates, proxies, warrants, commercial paper, receipts, withdrawal receipts and deposit instruments relating to accounts or deposits in or certificates of deposit of banks, savings-and-loans or other such institutions or associations, proofs of loss, evidences of debts, releases and satisfaction of mortgages, judgments, liens, security agreements and other debts and obligations and such other instruments in writing of whatever kind and nature as may be necessary or proper in the exercise of the rights and powers herein granted.

*** END OF SAMPLE VIEW OF THIS SECTION ***

Most of the states which have statutory forms have combined both financial affairs and health care on the same form and therefore leave it to the Principal to indicate both the type and extent of the authority being transferred. Some states do, however, also have separate durable powers of attorney just for financial affairs whose use is usually not mandatory. For example, the forms that follow are the statutory durable power of attorney for financial affairs for California and New York.

RECORDING REQUESTED BY

AND WHEN RECORDED MAIL TO

_____________________________________________________________________________ Space above this line for recorder's use

NOTICE: The powers granted by this document are broad and sweeping. They are explained in the Uniform Statutory Form Power of Attorney Act (California Civil Code Sections 2475-2499.5, inclusive). If you have any questions about these powers, obtain competent legal advice. This document does not authorize anyone to make medical and other health care decisions for you. You may revoke this power of attorney if you later wish to do so.

I, QUINCY HARKIN MYERS appoint (your name and address)

MARTIN LIERBAG of 3336 LOVELAND ROAD, YOUNGSTOWN, OHIO 44502 (name and address of the person appointed, or of each person appointed if you want to designate more than one)

as my agent (attorney in fact) to act for me in any lawful way with respect to the following initialed subjects:

To Grant All of the Following Powers, initial the line in front of (N) and ignore the lines in front of the other powers.

To Grant One or More, but Fewer than All, of the following powers, initial the line in front of each power you are granting.

To Withhold a Power, do not initial the line in front of it. You may, but need not, cross out each power withheld.

INITIAL

_____(A) Real property transactions.

_____(B) Tangible personal property transactions.

_____(C) Stock and bond transactions.

_____(D) Commodity and option transactions.

_____(E) Banking and other financial institution

transactions.

_____(F) Business operating transactions.

_____(G) Insurance and annuity transactions.

_____(H) Estate, trust, and other beneficiary transactions.

_____(I) Claims and litigation.

_____(J) Personal and family maintenance.

_____(K) Benefits from social security, Medicare, Medicaid, or other governmental programs, or civil or military service.

_____(L) Retirement plan transactions.

_____(M) Tax matters.

QLM (N)ALL OF THE POWERS LISTED ABOVE.

You need not initial any other lines if you initial line (N).

SPECIAL INSTRUCTIONS:

On the following lines you may give special instructions limiting or extending the powers granted to your agent.

None.

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.

This power of attorney will continue to be effective even though I become incapacitated.

STRIKE THE PRECEDING SENTENCE IF YOU DO NOT WANT THIS POWER OF ATTORNEY TO CONTINUE IF YOU BECOME INCAPACITATED.

EXERCISE OF POWER OF ATTORNEY WHERE

MORE THAN ONE AGENT DESIGNATED

*** END OF SAMPLE VIEW OF THIS SECTION ***

NEW YORK

GENERAL OBLIGATIONS LAW, ARTICLE 5, TITLE 15,

SECTION 5-1501, ET SEQ.

GENERAL POWER OF ATTORNEY

"NOTICE: THIS IS AN IMPORTANT DOCUMENT. BEFORE SIGNING THIS DOCUMENT YOU SHOULD KNOW THESE IMPORTANT FACTS. THE PURPOSE OF THIS POWER OF ATTORNEY IS TO GIVE THE PERSON WHOM YOU DESIGNATE (YOUR "AGENT") BROAD POWERS TO HANDLE YOUR PROPERTY, WHICH MAY INCLUDE POWERS TO PLEDGE, SELL, OR OTHERWISE DISPOSE OF ANY REAL OR PERSONAL PROPERTY WITHOUT ADVANCE NOTICE TO YOU OR APPROVAL BY YOU. YOU MAY SPECIFY THAT THESE POWERS WILL EXIST EVEN AFTER YOU BECOME DISABLED, INCAPACITATED, OR INCOMPETENT. THE POWERS THAT YOU GIVE YOUR AGENT ARE EXPLAINED MORE FULLY IN NEW YORK GENERAL OBLIGATIONS LAW, ARTICLE 5, TITLE 15, SECTIONS 5-1502a THROUGH 5-1503, WHICH EXPRESSLY PERMITS THE USE OF ANY OTHER OR DIFFERENT FORM OF POWER OF ATTORNEY DESIRED BY THE PARTIES CONCERNED. THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL OR OTHER HEALTH CARE DECISIONS FOR YOU. IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU."

"Know All Men by These Presents, which are intended to constitute a GENERAL POWER OF ATTORNEY pursuant to Article 5, Title 15 of the New York General Obligations Law:

That I , _________________________________________________________________ name and address of the principal

do hereby appoint:________________________________________

(If 1 person is to be appointed agent, insert the name and address of the agent above)

(If 2 or more persons are to be appointed agents with each agent to be able to act ALONE without requiring the consent of any other agent appointed in order to act, insert the name and address above of each agent SEPARATELY appointed and BE SURE TO insert the word "OR" between "EACH" designation of an agent to show that "EACH" agent has COMPLETE power to act alone)

(If 2 or more persons are to be appointed agents to act TOGETHER and requiring the JOINT consent of ALL appointed agents to act with no one agent to be able to act alone, insert the names and addresses above of all agents JOINTLY appointed and BE SURE TO insert the word "AND" between EVERY designation of each agent to indicate that ALL agents listed are required to act together and NONE can act alone)

my attorney(s)-in-fact TO ACT

(If more than one agent is designated and the principal wants each agent alone to be able to exercise the power conferred, insert in this blank the word "SEPARATELY")

(If more than one agent is designated and the principal wants all of the designated agents together to exercise the power conferred, insert in this blank the word 'JOINTLY')

(The failure to make any insertion in this blank will require the agents to act either separately or jointly, in accordance with the principal's use of the "OR" or the word "AND" between every respective designation of such agents above. If the principal's wishes cannot be determined because he or she fails to insert the word "OR", "AND" "SEPARATELY", or "JOINTLY" as he or she is asked to do above, the principal will be deemed to require the agents designated above to act jointly.)

In my name, place and stead in any way which i could do, if I were personally present, with respect to the following matters as each of them is defined in Title 15 of Article 5 of the New York General obligations Law to the extent that I am permitted by law to act through an agent:

Initial in the opposite box any one or more of the subdivisions as to which the principal WANTS to give the agent authority.

("NOTICE: The principal must write his or her initials in the corresponding blank space of a box below with respect to each of the subdivisions (A) through (N) below for which the principal wants to give the agent(s) authority. If the blank space with a box for any particular subdivision is NOT initialed, NO AUTHORITY WILL BE GRANTED for matters that are included in that subdivision")

(A) real estate transactions; ( )

(B) chattels and goods transactions; ( )

(C) bonds, share, and commodities transactions; ( )

(D) banking transactions; ( )

(E) business operating transactions; ( )

(F) insurance transactions; ( )

(G) estate transactions; ( )

(H) claims and litigation; ( )

(I) personal relationships and affairs; ( )

(J) benefits from military service; ( )

(K) records, reports, and statements; ( )

(L) full and unqualified authority to my ( ) attorney(s)-in-fact to delegate any or all of the foregoing powers to any person or persons whom my attorney(s)-in-fact shall select;

(M) all other matters; ( )

(N) if the blank space in the box to the right is ( ) initialed by the principal, this power of attorney shall not be affected by the subsequent disability or incompetence of the principal;

(Special provisions and limitations may be included in the statutory short form power of attorney only if they conform to the requirements of section 5-150-3 of the New York General Corporations Law.)

*** END OF SAMPLE VIEW OF THIS SECTION ***

Within the last 15 years, all of the states have come to realize it is not always necessary to require a conservator or guardian to be appointed for an incompetent if the person has taken care to protect himself for this eventuality. The states have adopted either the Uniform Durable Power of Attorney Act or the Uniform Probate Code or have enacted their own durable power of attorney legislation. All states now permit a person to grant an attorney in fact the power of attorney to act on the principal's behalf, including health care decisions, after the principal has become mentally incompetent. A durable power of attorney for health care is a specialized form of power of attorney that gives the power to an attorney in fact to make health care decisions for a principal who has become incompetent. Durable powers of attorney for health care are valid in all states.

What an attorney in fact can do is governed by state law. States that have adopted statutory forms for durable powers of attorney usually list limitations in their statutes that bind the attorney in fact. Many states limit the scope of the medical decisions that can be made for a principal without a court conservator or guardian over the person. The medical decision limitations define acts reasonable attorney in fact would not make anyway. For example, in California an attorney in fact cannot authorize convulsive treatment, psychosurgery or commitment to a mental institution. Decisions on such technical topics should be made only after joint consultation with an attorney, the principal's doctors and the court. The attorney in fact does have the power to place an incompetent principal in a nursing home. In like manner, many durable power of attorney instruments (specifically those for health care) have clauses requiring the attorney in fact to be replaced with a designated successor when he becomes incompetent or otherwise unable to perform the duties of attorney in fact.

Unlike a durable power of attorney for financial affairs, a durable power of attorney for health care cannot be terminated by a court appointed conservator or guardian for a person who has one.

Some states have created mandatory statutory forms for the creation of durable powers of attorney for health care whereas other states have no particular forms or their statutory forms are not mandatory. The use of statutory forms is not mandatory. Even though the forms may not be mandatory, their use should be considered because there is less chance of ambiguities arising in a statutory form. Following is both a uniform durable power of attorney for health care and a combined uniform durable power of attorney form for financial affairs and health care for use in states that have not adopted a statutory form. In addition a specific durable power of attorney for health care for use in Ohio and Tennessee also follow. Both Ohio and Tennessee require any durable power of attorney to have a specific notice provision in it in order to be valid. These forms have the required notices.

Following this chapter are also the Statutory Durable Power of Attorney Forms, medical directives or health proxies, which appoint attorney in facts for health care for the following states:

1. Alaska
2. California
3. Connecticut
4. District of Columbia
5. Illinois
6. Georgia
7. Idaho
8. Kansas
9. New Mexico
10. Nevada
11. New Hampshire
12. New York Health Proxy
13. Oregon Advance Directive
14. Rhode Island
15. South Carolina
16. Texas
17. Utah Special Power of Attorney
18. Vermont
19. West Virginia Medical Power of Attorney
20. Wisconsin

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

KNOW ALL MEN BY THESE PRESENTS, that I, __________________________________ residing at _______________________________________do declare this to be a durable power of attorney.

This power of attorney shall not be affected by subsequent incapacity of the principal.

I hereby revoke all prior powers of attorney regardless of the type and to whom they may have been given.

I hereby nominate, constitute and appoint _________________________________________whose address and telephone number is: _________________________________________________________________ ___________________________________________________________________________________as my true and lawful attorney in fact, for me and in my name, place and stead, and for my use and benefit, to exercise the following powers:

This durable power of attorney shall become effective:

( ) Immediately upon execution of this durable power of attorney.

( ) Only after certification by two licensed physicians that I lack the mental capacity to make health care and financial decisions for myself.

(1) To make health care decisions on my behalf. "Health care decisions" means decisions on my care, treatment and procedures to be used to maintain, diagnose and treat my physical condition. This durable power of attorney as it pertains to health care decisions does not carry the power to authorize any of the following acts:

(a) Any commitment or placement in a mental health facility,

(b) Any convulsive treatment, or

(c) Any psychosurgery.

Furthermore, I hereby expressly authorize any physician, hospital, or other person or organization to release and disclose to my agent any information any of them may have concerning any treatment, diagnosis, recommendation or other fact, which they may have concerning my physical condition and any health care, counsel, treatment or assistance provided to me either before or after the execution of the power of attorney, any privilege hereby being expressly waived as to such disclosures. This waiver shall extend to communications to my agent only and shall not be deemed a general waiver of the privilege. My agent may, however, authorize release of such information to such third persons as my agent deems to be reasonable or necessary in the exercise of the powers granted in this instrument.

(3) Subject to any limitations in this document, my agent has the power and authority to do all of the following:

yes ( ) no ( ) (a) Authorize an autopsy.

yes ( ) no ( ) (b) Make a disposition of a part or parts of my body under the Uniform Anatomical Gift Act.

yes ( ) no ( ) (c) Direct disposition of my remains.

The attorney in fact under this durable power of attorney is specifically not given and does not have the authority or power to revoke, amend or alter any living will declaration or last will and testament that I have created or will create.

The Attorney in Fact ( ) is ( ) is not granted reasonable compensation for services rendered under this Power of Attorney.

Special instructions or authority: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

KNOW ALL PEOPLE BY THESE PRESENTS, that I, ___________________________________ residing at _______________________________________________ , phone number_______________________ do declare this to be a Durable Power of Attorney.

This Durable Power of Attorney shall not be affected by subsequent incapacity of the principal.

This Durable Power of Attorney shall become effective:

( ) Immediately upon the execution of this Durable Power of Attorney.

( ) Only after certification by two licensed physicians that I have been determined to lack the capacity to make health care and financial decisions for myself.

I hereby revoke all prior powers of attorney regardless of the type or to whom they may have been given.

I hereby nominate, constitute and appoint ____________________, whose address and telephone number are: ___________________________________________________________________________________ ___________________________________________________ , as my true and lawful Attorney in Fact, for me and in my name, place and stead, and for my use and benefit, to exercise the following powers:

(1) To make health care decisions on my behalf. Health care decisions means decisions on my care, treatment, or procedures to be utilized in order to maintain, diagnose or treat my physical condition. This Durable Power of Attorney, as it relates to health care decisions, does not carry with it the power to authorize any of the following acts:

(A) Any commitment or placement in a mental health facility,

(B) Any convulsive treatment, or

(C) Any psychosurgery.

Furthermore, I hereby expressly authorize any physician, hospital, and any other person or organization, to release and disclose to my agent any information any of them may have concerning my physical condition and any health care, counsel, treatment, or assistance provided to me either before or after the execution of this power of attorney, any privilege hereby being expressly waived to such disclosures. This waiver shall extend to communications to my agent only and shall not be deemed a general waiver of the privilege. My agent may, however, authorize release of such information to such third persons as my agent deems to be reasonable or necessary in the exercise of the powers granted in this instrument.

(2) Subject to any limitations in this document, my agent has the power and authority to do all of the following:

yes ( ) no ( ) (a) Authorize an autopsy.

yes ( ) no ( ) (b) Make a disposition of a part or parts of my body under the Uniform Anatomical Gift Act.

yes ( ) no ( ) (c) Direct disposition of my remains.

(3) Subject to any limitations in this document, I hereby grant to my agent full power and authority to act for me in my name, in any way which I myself could act, with respect to the following matters as each of them to the extent that I am permitted to act through an agent:

(A) Real estate transactions,

(B) Tangible personal property transactions,

(C) Bond, share and commodity transactions,

(D) Financial institution transactions,

(E) Business operating transactions,

(F) Insurance transactions,

(G) Retirement plan transactions,

(H) Estate transactions,

(I) Claims and litigation,

(J) Tax matters,

(K) Personal relationships and affairs,

(L) Benefits from military service,

(M) Records, reports and statements,

(N) Full and unqualified authority to my agent to delegate any and all of the foregoing powers to any person or persons whom my agent shall delegate.

(4) To ask, demand, sue for, recover, collect, and receive such sums of money, debts, dues accounts, legacies, bequests, interest, dividends, annuities, and demands whatsoever as are now or shall hereafter become due, owing payable or belonging to me and have, use and take all lawful ways and means in my name or otherwise, and to compromise and agree for the acquittance or other sufficient discharge of the same.

(5) For me in my name, to make, seal, and deliver, to bargain, contract, agree for, purchase, receive, and take lands, tenements, hereditaments and accept the possession of all lands, and deeds of assurances, in the law therefor, and to lease, let, demise, bargain, sell, remise, release, convey, mortgage, and hypothecate lands, tenements and hereditaments upon such covenants as they shall think fit.

(6) To sign, endorse, execute, acknowledge, deliver, receive, and possess such applications, contracts, agreements, options, covenants, deeds, conveyances, trust deeds, security agreements, bills of sale, leases, mortgages, assignments, insurance policies, bills of lading, warehouse receipts, documents of title, bills, bonds, debentures, checks, drafts, bills of exchange, notes, stock certificates, proxies, warrants, commercial paper, receipts, withdrawal receipts and deposit instruments relating to accounts or deposits in or certificates of deposits of banks, savings and loans or other such institutions or associations, proof of loss, evidences of debts, releases and satisfaction of mortgages, judgments, liens, security agreements, and other debts and obligations, and such other instruments in writing of whatever kind and nature as may be necessary or proper in the exercise of the rights and powers herein granted.

STATUTORY FORM DURABLE POWER OF ATTORNEY FOR HEALTH CARE

WARNING TO PERSON EXECUTING THIS DOCUMENT

This is an important document which is authorized by the Keene Health Care Agent Act. Before executing this document, you should know these facts:

This document gives the person you designate as your agent (the attorney in fact) the power to make health care decisions for you. Your agent must act consistently with your desires as stated in this document or otherwise made known.

Except as you otherwise specify in this document, this document gives your agent the power to consent to your doctor not giving treatment or stopping treatment necessary to keep you alive.

Notwithstanding this document, you have the right to make medical and other health care decisions for yourself as long as you can give informed consent with respect to the particular decision. In addition, no treatment may be given to you over your objection at any time, and health care necessary to keep you alive may not be stopped or withheld if you object any time.

This document gives your agent authority to consent, to refuse to consent, or to withdraw consent to any care, treatment, service, or procedure to maintain, diagnose, or treat a physical or mental condition. This power is subject to any statement of your desires and any limitations that you include in this document. You may state in this document any types of treatment that you do not desire. In addition, a court can take away the power of your agent to make health care decisions for you if the agent (1) authorizes anything that is illegal, (2) acts contrary to your known desires, or (3) where your desires are not known, does anything that is clearly contrary to your best interests.

The powers given by this document will exist for an indefinite period of time unless you limit the duration in this document.

You have the right to revoke the authority of your agent by notifying your agent or your treating doctor, hospital, or other health care provider orally or in writing of the revocation.

Your agent has the right to examine your medical records and to consent to their disclosure unless you limit this right in this document.

Unless you otherwise specify in this document, this document gives your agent the power to (1) authorize an autopsy, (2) donate your body or parts thereof for transplant or therapeutic or educational or scientific purposes, and (3) direct the disposition of your remains.

This document revokes any prior durable power of attorney for health care.

You should carefully read and follow the witnessing procedure described at the end of this form. The document will not be valid unless you comply with the witnessing procedure.

If there is anything in this document that you do not understand, you should ask a lawyer to explain it to you.

Your agent may need this document immediately in the case of an emergency that requires a decision concerning your health care. Either keep this document where it is immediately available to your agent and alternate agents or give each of them an executed copy of this document. You may also want to give your doctor an executed copy of this document.

Do not use this form if you are a conservatee under the Lanterman-Petris-Short Act and you want to appoint your conservator as your agent. You can only do that if the appointment document includes a certificate of your attorney.

1. Designation of Health Care Agent. I,____________________ do hereby designate and appoint ____________________________________________________________________________ ____________________________________________________________________________

(Insert name, address, and telephone number of one individual only as your agent to make health care decisions for you. None of the following may be designated as your agent: [1] your treating health care provider, [2] a nonrelative employee of your treating health care provider, [3] an operator of a community care facility, [4] a nonrelative employee of an operator of a community care facility, [5] an operator of a residential care facility for the elderly or [6] a nonrelative employee of an operator of a residential care facility for the elderly.)

as my attorney in fact (agent) to make health care decisions for me as authorized in this document. For the purposes of this document "health care decision" means consent, refusal to consent, or withdrawal of consent to any care, treatment, service or procedure to maintain, diagnose or treat any of the individual's physical or mental condition.

*** END OF SAMPLE VIEW OF THIS SECTION ***

OHIO

OHIO REVISED CODE SECTION 1337.17

This is an important legal document. Before executing this document, you should know these facts:

This document gives the person you designate (the attorney in fact) the power to make MOST health care decisions for you if you lose the capacity to make informed health care decisions to yourself. The power is effective only when your attending physician determines that you have lost the capacity to make informed health care decisions for yourself and, notwithstanding this document, as long as you have the capacity to make informed health care decisions for yourself, you retain the right to make all medical and other health care decisions for yourself.

You may include specific limitations inn this document on the authority of the attorney in fact to make health care decisions for you.

Subject to any specific limitations you include in this document, if your attending physician determines that you have lost the capacity to make an informed decision on a health care matter, the attorney in fact GENERALLY will be authorized by this document to make health care decisions for you to the same extent as you could make those decisions yourself, if you had the capacity to do so. The authority of the attorney in fact to make health care decisions for you GENERALLY will include the authority to give informed consent, to refuse you give informed consent, or to withdraw informed consent to any care, treatment, service, or procedure to maintain, diagnose, or treat a physical or mental condition.

HOWEVER, even if the attorney in fact has general authority to make health care decisions for you under this document, the attorney in fact NEVER will be authorized to do any of the following:

(1) Refuse or withdraw informed consent to life-sustaining treatment (unless your attending physician and one other physician who examines you determine, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, that either of the following applies:

(a) You are suffering from an irreversible, incurable, and untreatable condition caused by disease, illness, or injury from which (i) there can be no recovery, and (ii) your death is likely to occur with a relatively short time if life-sustaining treatment is not administered, and you attending physician additionally determined, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, that there is no reasonable possibility that you will regain the capacity to make informed health care decision for yourself.

(b) You are in a state of permanent unconsciousness that is characterized by you being irreversibly unaware of yourself and your environment and by a total loss of cerebral cortical functioning, resulting in you having no capacity to experience pain or suffering, and your attending physician additionally determines, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, that there is no reasonable possibility that you will regain the capacity to make informed health care decisions for yourself.

(2) Refuse or withdraw informed consent to health care necessary to provide you with comfort care (except that, if he is not prohibited from doing so under (4) below, the attorney in fact could refuse or withdraw informed consent to the provision of nutrition or hydration to you described under (4) below). (You should understand that comfort care is defined in Ohio law to mean artificially or technologically administered sustenance (nutrition) or fluids (hydration) when administered to diminish your pain or discomfort, not to postpone your death, and any other medical or nursing procedure, treatment, intervention, or other measure that would be taken to diminish your pain or discomfort, not to postpone your death. Consequently, if your attending physician were to determine that a previously described medical or nursing procedure, treatment, intervention, or other measure will not or no longer will serve to provide comfort to you or alleviate your pain, then subject to (4) below, your attorney in fact would be authorized to refuse or withdraw informed consent to the procedure, treatment, intervention, or other measure.);

(3) Refuse or withdraw informed consent to health care for you if you are pregnant and if the refusal or withdrawal would terminate the pregnancy (unless the pregnancy or health care would pose a substantial risk to your life, or unless your attending physician and at least one other physician who examines you determine, to a reasonable degree of medical certainty, and in accordance with reasonable medical standards, that the fetus would not be born alive);

(4) Refuse or withdraw informed consent to the provision of artificially or technologically administered sustenance (nutrition) or fluids (hydration) to you unless;

(a) You are in a terminal condition or in a permanently unconscious state.

(b) Your attending physician and at least one other physician who has examined you determine, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, that nutrition or hydration will not or no longer will serve to provide comfort to you or alleviate your pain.

(c) If, but only if, you are in a permanently unconscious state, you authorize the attorney in fact to refuse or withdraw informed consent to the provision of nutrition or hydration to you by both of the following in this document:

(i) Including a statement in capital letters that the attorney in fact may refuse or withdraw informed consent to the provision of nutrition or hydration to you if you are in a permanently unconscious state and if the determination that nutrition or hydration will not or no longer will serve to provide comfort to you or alleviate your pain is made, or checking or otherwise marking a box or line (if any) that is adjacent to a similar statement on this document.

(ii) Placing your initials or signature underneath or adjacent to the statement, check or other make previously described.

(d) Your attending physician determines, in good faith, that you authorized the attorney in fact to refuse or withdraw informed consent to the provision of nutrition or hydration to you if you are in a permanently unconscious state by complying with the requirements of (4)(c)(i) and (ii) above.

(5) Withdraw informed consent to any health care to which you previously consented, unless a change to your physical condition has significantly decreased the benefit of that health care to you, or unless the health care is not, or is no longer, significantly effective in achieving the purposes for which you consented to its use.

Additionally, when exercising his authority to make health care decisions for you, the attorney in fact will have to act consistently with you desires or, if your desires are unknown, to act in your best interest. You may express your desires to the attorney in fact by including them in this document or by making them known to him in another manner.

When acting pursuant to this document, the attorney in fact generally will have the same rights that you have to receive information about proposed health care, to review health care records, and to consent to the disclosure of health care records. You can limit that right in this document if you so choose.

Generally, you may designate any competent adult as the attorney in fact under this document. However,, you cannot designate your attending physician or administrator of any nursing home in which you are receiving care as the attorney in fact under this document. Additionally, you cannot designate an employee or agent of your attending physician, or an employee or agent of a health care facility at which you are being treated, as the attorney in fact under this document, unless either type of employee or agent is a competent adult and you and the employee or agent are me