An enduring power of attorney is an authorization to act on another person’s behalf in financial and legal matters that will continue in effect after the principal person giving it has died. In California, agents who act on behalf of another are called attorneys. An attorney must exercise reasonable skill and care in connection with the representation of another person. An enduring power of attorney must not be given to anyone who does not know and who does not accept the responsibilities and duties imposed upon them by the principal. A principal can revoke the authorization at any time by complying with statutory procedures contained in the Probate Code. For more information, visit williamslegal.com.au now.
When determining whether a person can make an enduring power of attorney, the court often uses two sets of criteria to evaluate the person’s capacity. One set of standards is the mental capacity of the individual, which is the ability to understand the nature and importance of the documents and to understand and follow the instructions it contains. The other set of standards is the physical capacity of the individual, which refers to their capacity to execute the documents. Often, this second set of standards is used in cases involving potential donors who cannot sign donor release forms or sign any document at all.
In some states, there are no specific requirements for enabling a person to make decisions under the provisions of an enduring power of attorney. For example, in some jurisdictions, it is not required for a person who has been suffering from a debilitating illness to be “put in a coma” to have the capability to make decisions under the provisions of a PoA. Similarly, in other jurisdictions, the mere fact that a person is in severe pain or is otherwise incapacitated does not prevent that person from making decisions under the provisions of a PoA. However, once the court determines that the applicant can make decisions in these states, they must file an appropriate power of attorney form with the court responsible for executing a power of attorney. For more information, visit williamslegal.com.au now.
In short, when an enduring power of attorney allows a person to control certain financial affairs, it does not transfer those powers to anyone else. Rather, it transfers those powers to the individual who is the subject of the POA. That individual must recognize the limitations imposed on them by the POA and promptly follow all of the court’s directions regarding the continuing management of those affairs. A person who is “entitled” to receive certain types of financial gifts cannot do so if they do not recognize those gifts and do not follow the proper procedures required. For this reason, it is vitally important that anyone considering seeking a POA clarify its meaning before signing. An experienced attorney can help that person make an informed decision about whether a POA is the best route for their particular financial affairs. For more information, visit williamslegal.com.au now.