Hi,
Before giving you any information, I'd like to remind you of the
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The rules regarding DPOA are dependent on current local laws. New
rulings on this subject are regulal occurances. You really need to
consult a live expert in your area to get the best answer to this
question.
Having said that...
There are two distinct types of Durable Power of Attorney (DPOA). One
is for general decision making and the other is for health care.
The health care DPOA only takes effect upon written certification by a
physician that "the principal [the son in this case] lacks capacity to
make health care decisions. The physician's certificate must be filed
in the medical records of the patient".
http://www.texasguardianship.org/alternatives.html
If your DPOA is in regard to health decisions and the written
certification has been obtained, the medical professionals and
facilities should allow you to make medical decisions for the
principal.
The other form of DPOA allows the agent [the father] to make financial
and other nonmedical decisions for the principal. If gift provisions
are included, the agent may gift others with parts of the property of
the principal. Business transactions, tax filing and banking can be
handled by the agent for the principal.
Normally the DPOA terminates on the death of the principal. This
assumes that the principal has appointed an executor of the estate who
fills the same duties as the person appointed by the DPOA.
Assuming that the principal is stillliving, the DPOA should be
recognized unless it was revoked. So technically, the answer to your
question is that the document is still valid.
However as http://www.estateattorney.com/poas.htm notes,
"While the durable power of attorney has always been a relatively easy
way to deal with a potential disability, it does have its drawbacks.
The chief problem is that there is no guarantee that third parties,
such as banks or brokers, will honor the power of attorney. This is
especially the case if there has been a long passage of time since the
power of attorney was signed."
If your DPOA has wording such as "This durable power of attorney has
no expiration date, and shall not be affected by my disability or by
the passage of time" you stand a better chance of getting it
recognized.
Some jurisdictions have passed laws to address this problem. If you
live in one of these areas, there will be no liability for third
parties if they recognize the DPOA and liability will be incurred if
they fail to act in accordance with the law.
Here are some links that will give you more in depth general
information about the validity and expiration of DPOAs.
Durable Power of Attorney - 2000 Update
http://www.keln.org/bibs/marcel2.html
This site links to some excellent references on DPOAs. The focus is on
Kansas law, but one link, http://www.keln.org/bibs/ghodstinat.html,
leads to Durable Power of Attorney in the United States.
In Montana, the POA is not revoked unless notice is given
http://data.opi.state.mt.us/bills/mca/72/5/72-5-502.htm
In Texas, "A durable POA terminates upon qualification of a guardian
of the estate. A durable POA also may be terminated by the principal
or may have date of expiration as provided in the document."
http://www.texasguardianship.org/alternatives.html
I hope this gives you an idea of the complexity of your situation.
Please follow up with a local attorney who is familiar with the
regulations in your area.
search terms used: expiration Durable Power of Attorney DPOA
Regards,
bcguide-ga |
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