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A durable power of attorney addresses the problems which arise when an individual becomes disabled or incapacitated, or is otherwise unable to manage his or her own financial affairs. When properly drafted, a power of attorney allows an individual (the “principal”) to designate an “agent” (usually a spouse, adult child or trusted friend) to perform a multitude of duties when the principal becomes unable to do so. It may also provide for alternate agents, compensation of agents and other contingencies.  A properly drafted durable power of attorney can avoid the need for a guardianship proceeding upon the incapacity of the principal. It also ensures that the person of the principal’s choosing has control over the management of the principal’s assets in the event the principal does become incapacitated.  Although a Power of Attorney is designed to be used when the principal becomes incapactiated, it is effective nonetheless, upon its execution.

 A “springingpower of attorney takes effect at a future time or upon an event defined by the principal, including but not limited to, the principal’s incapacity. The “springing” power of attorney may be appropriate where the principal wants to retain complete control over his or her assets until disability.

If the power of attorney states that it takes effect upon the occurrence of a date or a specified contingency, then the power of attorney will become effective on that date or contingency, and the agent’s signature. If the power of attorney requires that the contingency be certified by another person in writing, the declaration satisfies the requirement regardless of whether the contingency has actually occurred.

 

 
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