This should minimize confusion and provide protection against your agent abusing his authority. Consider hiring a local attorney or using a document preparation service to help you prepare the amendment. In some cases, revoking and destroying the original power of attorney and executing a new one with the added terms is a better option than creating an amendment. John Cromwell specializes in financial, legal and small business issues.
Cromwell holds a bachelor's and master's degree in accounting, as well as a Juris Doctor. He is currently a co-founder of two businesses. Share It. Therefore, if you become incapacitated, your durable power of attorney will endure until your incapacity is lifted. However, it will not be possible for you to make, amend, or revoke your power of attorney during your incapacity.
This article was originally published on January 8, , and updated on August 10, Your email address will not be published. A durable power of attorney unquestionably remains valid after the original maker of the power of attorney becomes incapacitated. But there is some question about whether an incapacitated person can revoke the durable power of attorney even after they become incapacitated.
Do you have a case citation standing for the proposition that the maker of a durable power of attorney cannot revoke the power of attorney once they become incapacitated? Note that a medical power of attorney can be revoked by an incompetent person ever after the incompetent person becomes incompetent.
I have communicated with Professor Gerry Beyer about this issue and while it is not spelled out in the statute, it is his opinion that the principal must have capacity to revoke. In order to amend the power of attorney, one must take specific action. Obtain the appropriate durable power of attorney form for the state in which you reside. Check with a local legal stationery store or at an internet legal forms supplier in order to obtain this form.
Alternatively, retain an attorney and have the attorney provide the correct form. Properly complete the form. If the revocation is part of the public records, people who check those records in dealing with the real estate later will know that the former attorney-in-fact is no longer authorized to act on your behalf. It's not enough to sign a revocation, or even to record it, for it to take effect; there's one more crucial step.
You must notify the former attorney-in-fact and all institutions and people who have dealt or might deal with the former attorney-in-fact. Each of them must receive a copy of the Notice of Revocation. If you don't give this written notification, people or institutions who don't know the durable power of attorney has been revoked might still enter into transactions with the former attorney-in-fact. If they do this in good faith, they are legally protected.
You may well be held legally liable for the acts of your attorney-in-fact, even though you have revoked his or her authority. In other words, once you create a durable power of attorney, the legal burden is on you to be sure everyone knows you have revoked it.
After his convalescence, Michael revokes the power of attorney in writing. He sends a copy of the revocation to Colette, his attorney-in-fact, but neglects to send a copy to his bank. The bank isn't responsible to Michael for his loss. Who needs to know? When you're ready to send out revocation notices, try to think of everyone with whom the attorney-in-fact has had, or may have, dealings. These may include:. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site.
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