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July 4, 2017

The “Switching” Durable Power of Attorney

Filed under: Ken Edelstein — Tags: , — admin @ 9:23 am

Durable – this means the Agent “Might” have authority at any given moment. Unlike the regular Power of Attorney, the “agency” relationship (not the specific powers) between the Principal and Agent (can) switch on and off. The status can be elusive, as it is/might be based on incapacitation of the Principal to manage their own affairs. And, specifically how the Power of Attorney is worded. It becomes even more interesting when the variations of the Durable are considered. Note: these variations are usually not in the title; the devil is in the details. Also note: I have never seen the word Switching used in the title of a real POA; that’s my term.

Even When I’m Sick – Durable in this variation continues the agency relationship when the person becomes incapacitated. Unlike a regular POA, this maintains agency even when the Principal is unable to revoke the Agent authority. This is the format that I have most commonly seen. It generally takes effect upon notarization of both the Principal and the Agent. It is “durable” in the sense that it maintains agency, thru incapacitation until revoked.

Not Now, Maybe Later – In this variation the agency relationship does not exist when the Principal signs the document. The objective is to establish agency when the Principal is no longer a valid subject for notarization – incapacitated. Clearly at the moment of notarization; the Principal cannot be incapacitated. It may look like a “ready to use POA”, but Agent has no authority while the Principal is able to manage their own affairs, IF it is written that way. Contrast with the regular POA which establishes the agency relationship (Agent has authority) – immediately.

The Notary Point of View – the internal wording of the Power of Attorney, Durable or not – does not concern the notary. What it says, or does not say; is of no concern to me. The usual criterion for us to notarize a signature applies, regardless of the wording. Perhaps a bit more so, as POA documents are potential vehicles for mischief. Care should be taken with IDs and that there is no intimidation.
The Acceptors Point of View – So many nooks and crannies, it could be difficult to establish a current agency relationship, and Agent’s current authority. Perhaps that is why many banks insist upon only accepting their own POA document. Usually? There is no usually, the acceptor will probably need an Attorney and some research to determine current validity. It may be titled “Durable Power of Attorney” but if the fine print says it’s only valid when (and that when can be a moving (off and on) target) the Principal is incapacitated – is it valid when presented?

A POA form may look “routine” – but the notary steps over the cliff if they “explain” it. I am not an attorney, nor can I relate how this document applies to your situation. Or, in the very unlikely situation can I advise the acceptor as to acceptance. I can only say that the signatures were notarized following all applicable laws. That’s it.

Due to the potential for fraud and litigation, many are the local (to me) notaries who decline to process any Power of Attorney documents. We are not required to read or understand the contents of documents we notarize. Apply the basics, to the letter – if it feels “bad” run away.


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