Friday, October 24, 2014

Suspension, Termination and Conflicts Relating to Advance Directives and Powers of Attorney

Powers of attorney are commonly used instruments, but few people spend the time to really understand how they actually operate. This includes attorneys and lay persons. Depending on whether a power of attorney is considered durable, there are certain events, such as a principal's subsequent incapacity, which may limit, or restrain an agent from exercising his or her enumerated powers pursuant to the power of attorney instrument.

Let's take a look at just some of the events which can result in a suspension or termination of a power of attorney. Firstly, if a power of attorney is not durable, meaning it does not contain certain language referenced by law, the following events will terminate a power of attorney. 1) principal dies, 2) becomes incapacitated. Of course a subsequently executed "poa" that explicitly revokes all previous ones, will also result in its termination.

If a poa is durable, the scenario mentioned above is a little different. While the death of the principal still results in termination, subsequent incapacity of the principal could lead to a multitude of scenarios. If a petition to determine the incapacity of the principle is filed, the authorities granted in the power of attorney are suspended until the petition is dismissed or the court enters an order authorizing the agent to carry out powers granted to him. Certain powers, like the authority to make health care decisions for the principal, remain effective until the Court orders otherwise.

In emergency situations, if the agent feels he needs to act on the principal's behalf the agent may ask or "petition" the court to allow him to use powers which are otherwise suspended, after a petition to determine incapacity has been filed.

Other issues arise when powers of attorney conflict with advance directives which the principal may have executed and which may have given different individuals authority to act on his or her behalf. These disputes sometimes involve family members, who have different opinions on what is best for the principal. The law provides that if an advance directive and a poa conflict, the advance directive controls, unless a poa is later executed, and expressly states otherwise.

While do-it your self forms for powers of attorney and other documents such as a living will and advance directive are easily obtainable, understanding how these instruments interact and often conflict, requires a little bit of patience, and in many instances some attorney advice.
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