Business Heaven/Business Heaven.iso/office/lguide1/durable.stb

Text File | 1993-01-06 | 5.8 KB | 112 lines

/* Here's the full text of the Uniform Durable Power of Attorney
Act. This act defines what a "Durable" power of attorney is. */

Section 1. Definition. A durable power of attorney is a power of
attorney by which a principal designates another his attorney in
fact in writing and the writing contains the words "This power of
attorney shall not be affected by subsequent disability or
incapacity of the principal," or "This power of attorney shall
become effective upon the disability or incapacity of the
principal," or similar words showing the intent of the principal
that the authority conferred shall be exercisable notwithstanding
the principal's subsequent disability or incapacity.

/* It is very important for everyone to see that there are TWO
different types of durable powers of attorneys. The first is a
power of attorney that goes into effect at the same time that it
is signed. The other is a power of attorney that "springs into
effect" when a person becomes disabled. In other words, the
principal does not give up any control of their affairs until and
unless they become disabled. In other words, you never give up
control to the person designated as the attorney until you are
unable to handle your own affairs. */

Section 2. Durable Power of Attorney Not Affected by Disability.
All acts done by an attorney in fact pursuant to a durable power
of attorney during any period of disability or incapacity of the
principal have the same effect and inure to the benefit of and
bind the principal and his successors in interest as if the
principal were competent and not disabled.

/* In a standard power of attorney, the law provides that the
power is automatically revoked upon the disability of the
principal. Most people do not need an "attorney" to handles their
business for them, EXCEPT when they are disabled. Therefore, this
act. */

Section 3. Relation of Attorney in Fact to Court-appointed
Fiduciary. (a) If, following execution of a durable power of
attorney, a court of the principal's domicile appoints a
conservator, guardian of the estate, or other fiduciary charged
with the management of all of the principal's property or all of
his property except specified exclusions, the attorney in fact is
accountable to the fiduciary as well as to the principal. The
fiduciary has the same power or revoke or amend the power of
attorney that the principal would have had if he were not
disabled or incapacitated.

/* This section provides that if a court takes over a persons
affairs that the court appointed person can affirm or revoke the
power of attorney. This gives the Court the ultimate authority.
*/

(b) A principal may nominate, by a durable power of attorney, the
conservator, guardian of his estate, or guardian of his person,
for consideration by the court if protective proceedings for the  p73 principal's person or estate are thereafter commenced. The court
shall make its appointment with the principal's most recent
nomination in a durable power of attorney except for good cause
shown.

/* This section provides that you may specify who a court will
appoint if you become a ward of the court. */

Section 4. (a) The death of a principal who has executed a
written power of attorney, durable or otherwise, does not revoke
or terminate the agency as to the attorney in fact or other
person, who, without actual knowledge of the death of the
principal, acts in good faith under the power. Any action so
taken, unless otherwise invalid or unenforceable, binds
successors in interest to the principal.

(b) The disability or incapacity of a principal who has
previously executed a written power of attorney that is not a
durable power of attorney that is not a durable power does not
revoke or terminate the agency as to the attorney in fact or
other person, who, without actual knowledge of the disability or
incapacity of the principal, acts in good faith under the power.
Any action so taken, unless otherwise invalid or unenforceable,
binds the principal and his successors in interest.

Section 5. Proof of Continuance of Durable and Other Powers of
Attorney by Affidavit. As to acts undertaken in good faith
reliance thereon, an affidavit executed by the attorney in fact
under a  power of attorney, durable or otherwise, stating that he
did not have at the time of exercise of the power actual
knowledge of the termination of the power by revocation or of the
principal's death, disability, or incapacity is conclusive proof
of the nonrevocation or nontermination of the power at that time.
If the exercise of that power of attorney requires execution and
delivery of any instrument that is recordable, the affidavit when
authenticated for record is likewise recordable. This section
does not affect any provision in a power of attorney for its
termination by expiration of time or occurrence of an event other
than express revocation or a change in the principal's capacity.

/* We have previously stated the common law rule that Powers of
Attorney are revoked by the death or incapacity of the principal.
That makes it difficult for person to engage in business
transactions with persons holding powers of attorney. This
portion of the Act says that if you get an affidavit, you are
okay. The document generator contains a form for this purpose. Of
course, if a power of attorney says that it is revoked after 30
days, no affidavit can extend its life beyond that time. */

Section 6. Uniformity of Application and Construction. This Act
shall be applied and construed to effectuate its general purpose
to make uniform the law with respect to the subject of this Act
among the states enacting it.

Section 7. Short title. This Act may be cited as the Uniform
Durable Power of Attorney Act.

/* The remainder of the act is housekeeping. */