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A durable power of attorney is a power of attorney by which an adult person, called the “principal”, designates another person as his or her “attorney-in-fact”. An “Attorney-in-Fact” is one who acts as an agent or representative of another and has been given the authority to act in that person???s behalf.

It is a written document and in West Virginia it must contain the words indicating that the Power of Attorney shall not be affected by the disability or incapacity of the principal or that the power of attorney shall only become effective upon the disability or incapacity of the principal. The intention of the principal is that he or she will have an agent to act according to his or her wishes in the event that they are unable to do so.

In West Virginia all acts done by an attorney-in-fact, during any period of disability or incapacity of the principal, will have the same effect and agreements made will be binding to his successors as if the principal were competent and not disabled.

After a durable power of attorney is executed in West Virginia, the court, within the principalâ??s permanent residence, may appoint a guardian or trustee of the estate who would manage all of the principalâ??s property, except for any written specified exclusions. The guardian or trustee has the power to revoke or amend the attorney-in-factâ??s duties.

In West Virginia the principal may also nominate, in his power of attorney document, a guardian of his estate if protective proceedings for the principalâ??s person or estate are recommended or felt to be necessary.

If the attorney-in-fact initiates agreements or contracts, without knowledge of the principalâ??s death, and is acting in good faith for the principal, any action he has taken is valid and binds his successors to such agreements. The same applies to the attorney-in-factâ??s actions when the power of attorney is revoked or terminated. Any commitments made during a time when he is not aware that the power of attorney has been revoked or terminated are valid, legal and binding.

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A limited power of attorney is used for a very specific purpose that can be clearly defined when a power of attorney is needed. The agent or attorney-in-fact that is appointed does not have control over the person’s entire life, only the specified authority granted to them in the limited power of attorney. In these cases, these types of power of attorney forms are usually used for financial transactions and the sales of real estate or personal property such as motor vehicles. Again, this appointment has no control or influence over any other aspect of the person’s life. They can only make decisions in a limited area and within limited parameters.

With a limited power of attorney, it can be given to a person or organization for a specific dealing. The person or organization has the authority to do what is specified in the limited power of attorney until it expires or it is revoked. The authority granted to the agent or attorney-in-fact can last as long as needed or include a specific date that it will expire. Most anything a person can do themselves can also be done through an agent or attorney-in-fact appointed in a limited power of attorney.

There are a number of reasons that a limited power of attorney may be used. However, these are not the only reasons and there are many more, as long as they are not disallowed by state law. Some of the power or authority granted to an agent or attorney-in-fact can include:

Any and all banking transactionsSafety deposit box entryUS security transactionsDebt collectionsReal estate salesReal estate managementReal estate purchasesBorrowing moneyManagement of a businessGovernment issuesFinancial decision makingGift giving and real estate planningBuying and selling vehiclesBuying and selling of other property, such as jewelry, furniture or electronicsThe signing of paychecksMoving dealingsShipping and storing items and goodsCustodial care of childrenChild medical care

A limited power of attorney is used when a person can not take care of the business themselves. For example, when the person will be out of the country, or there are other commitments or health reasons that stop them from being able to complete the task themselves.

Giving someone limited power of attorney status is different from state to state, however it usually entails filling out a form and signing off on the document. The limited power of attorney form can also be revoked at any time and for any reason as well. The person still has complete control over their life and the status of the limited power of attorney appointment.

Choosing an agent or attorney-in-fact for a limited power of attorney should still be considered carefully to make sure that they will carry out the person’s wishes correctly and will act in the best interest of the person.

Question by andy m: do you need a general power of attorney notarized?
i printed a general power of attorney form from an online source and there is no place on it to have a notary afix thier seal or fill out the information. so is this a legal document and does it need notarization. sorry if i am slow, just dont understand all this legal mumbo jumbo

Best answer:

Answer by wizjp
Sometimes and some states require a notary affirmation block. Some just stamp and notarize below the siguatures.

Thus is the problem with doc’s from the net.

I’d invest $ 100 and have a lawyer draw, notarize and record it; the time to find out there is a problem with a POA is before you need it

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Question by Maxwell’s Hammer: Which power-of-attorney form to use?
My best friend died in 2005 and in his will left about half his belongings, including a New York City apartment, to his domestic partner (I’ll call her Jenny) and half to his mother. His mother then filed suit to contest the will and tried to get that part of the estate that was left to Jenny. Jenny moved back to the Philippines where she was born. Jenny is very tired of all the legal trouble and wants to put it all behind her. The lawyer she has been using is located in NJ. I live in CT. I recently volunteered to deal with the legal issues here in the US and get things resolved and Jenny agreed to give me power-of-attorney to act on her behalf. I know that such generic forms are available online but I am not sure what state to use etc. As I said, Jenny is in the Philippines, the apartment and her old residence are in NY, the lawyer is in NJ and I am in CT. Can someone please advise me? Thank you.

Best answer:

Answer by wizjp
Yes. You do NOT need or want a generic POA in this case.

See a REAL lawyer, have a SPECIFIC POA drawn up for the issues you need to handle; have it overnighted to Jenny to sign before a notary (American Embassy can help) and return it to you.

Anything else is begging trouble in this situation. Generic POA is fine in situations where everyone is on the same page and there are no issues. (wife signing a mortgage whild husband is overseas; deed that won’t be transferred at a good time, that kind of thing). You are going to be left hanging twisting in the wind here if anything isn’t covered.

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A durable power of attorney actually can cover special, general and health care related needs. However, within this type of attorney is a durability clause. There are some different reasons that you may want to add a durability clause to a power of attorney form. While a power of attorney with a durability clause is in effect, if you should become mentally incompetent or disabled and unable to manage your own affairs, the durable power of attorney would not be affected because of the durability clause. If it were non-durable, the powers or authority given to the appointed agent or attorney-in-fact would be terminated because you became mentally incompetent or disabled. However, with the durability clause included, the powers or authority listed in the form would remain in effect and your appointed agent or attorney-in-fact could continue to act on your behalf. Mental incompetence or a disability can occur due to illness, injuries from accidents and other health related reasons. Persons diagnosed with a terminal illness will prepare a durable power of attorney form to ensure that the person named as their agent or attorney-in-fact can manage their property and financial affairs for them when they are unable to themselves.

If you should only want the agent or attorney-in-fact to have the powers or authority listed in the form if you should become mentally incompetent or disabled, your power of attorney form would include such a statement and this type of form is sometimes referred to as a “springing durable power of attorney” and the powers or authority granted to the agent or attorney-in-fact in the form would not go into effect unless a licensed doctor certifies that you are mentally incompetent and incapacitated.

Most durable power of attorney forms go into effect immediately after they are signed giving the person named as the agent the powers or authority listed in the form immediately. However, regardless of the reason you may use a durable power of attorney, you do need to make sure that the person or organization that you name as the agent or attorney-in-fact is someone you can trust and who will act in your best interest. Since they can manage your property and financial affairs, you want to make sure that it is clearly written on the form what powers or authority you are granting to them.

A lawyer does not have to be chosen as your agent or attorney-in-fact, however it is extremely important that you choose someone that you can trust.

Lastly, a successor agent or attorney-in-fact can be named even with a durability clause included. A successor agent or attorney-in-fact can be important to include in the event that your first choice for agent or attorney-in-fact cannot serve or cannot continue to serve as your agent or attorney-in-fact. Your successor agent can begin to act on your behalf if necessary without the need for you to complete another form.

This article was brought to you by Crissi Enger on behalf of Legal FormsBank.biz where you can download legal forms online. You can download your state’s power of attorney form at their Website, fill in the blanks on your PC, and then print it out. It’s that simple!

Question by .: WHen you get power of attorney forms signed and notarized,do you have to submit them to a county office?
I have durable power of attorney forms on my Mother, and she signed them and they were notarized. But do they now have to be submitted to some government agency in order to be valid?

Smith County, TX. No one working at government agencies will tell me because they say that is legal advice, and they are forbidden to give legal advice. So I am asking here.

Best answer:

Answer by s and d e
they do not need to be filed with a gov’t agency. just make sure they are always accessible-==should you need them. they are valid with the notary signature and stamp—that’s the point of being able to get the notarized, that makes them completely legal

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Question by Nean: How do I get power of attorney?
My father is physically disabled but not mentally disabled following a stroke. He is willing and able to give me power of attorney. I have the neccessary legal forms. Can I have them signed in the presence of witnesses and Notary without consulting with a lawyer? Also he wants to change his will after the death of a benficiary. Can we also do this if we have the necessary legal forms and witnesses without the presence of a lawyer?
We are located in Florida. Thank You for your help.

Best answer:

Answer by rickinnocal
Depends on State law, and you didn’t say where you are.

Some States require powers of attorney to be notarized, some do not. The law on wills also varies by State.

While no State *requires* that you use a lawyer for any of this, I would recommend it. Making a mistake can have consequences that do not become apparent until after it’s too late to fix them – i.e. after your father has passed.

Take my advice…. do NOT be “penny wise and pound foolish” on this. Spend a couple of hundred bucks on a lawyer.

Richard

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Article by Legal Forms Bank.biz

A power of attorney document can only be valid when the person giving the power of attorney is mentally competent when it is signed. What this is stating is that the person has to understand what powers they are giving to the agent and what this can mean to have another person making decisions for them. If the person for any reason has had their mental competence questioned, the best option is to have a physician evaluate the person and to state in writing that they are competent.

When there is a durable power of attorney that has already been signed than it will stay in effect or it can go into effect in the event that the person has become mentally incompetent. How mental competence is determined can be put into the durable power of attorney document. This can be done by the person completing the power of attorney form. For instance, the form can state the name of the physician that the person uses should be the one to complete the competence determination. There are other variations as well, such as having two different, named physicians check the person’s competence.

However, in the event that there is no specific requirements in the form, the current agent will still have to have a doctor examine the person to determine mental incompetence. Without the written statement from the physician stating mental incompetence, the majority of organizations and companies will not allow the agent to act on the person’s behalf. If there is still disagreement, then the courts will become involved to decide on the issue and use general standards to make a determination.

The physician that is doing the evaluation will take into account whether the person understands what is being covered by the power of attorney document and the implications that it means as well. They will also look at if the person understands the importance of subject and if communication is possible of reasonable choices.

Once mental competence has been determined, the document must be signed by the person that is giving the power of attorney to another person. The person must still be considered mentally competent at the time of signing keep in mind, so if time has elapsed, it is best to have the mental competence evaluated again. This is the only way that the document will be considered legally binding. If the person’s mental competence is called into question for any reason during the time of the signing, a doctor can be asked again to re-certify the person’s status in writing. The form will need to be notarized to ensure that it is harder for a third-party to challenge the power of attorney. The document is recorded, which is also necessary for real estate transactions.

This article was brought to you by Crissi Enger on behalf of Legal Forms Bank.biz where you can download legal forms online. You can download your state’s power of attorney form at their Website, fill in the blanks on your PC, and then print it out. It’s that simple!

Article by Legal Forms Bank.biz

In California any adult person who has the ability to enter into an agreement can complete and sign a California power of attorney form. The person who is granting authority to another person to act on his/her behalf and signs the power of attorney form is called the ???Principalâ??. The person who is granted authority to act on behalf of the principal with a third party is called the â??Attorney-in-factâ?? or â??Agentâ??. A California power of attorney form is required to include: the date it was signed; is signed by the principal; and his/her signature is verified and notarized by a notary public and two witnesses. If the power of attorney form is signed by two witnesses, they are required to be adults and cannot be the person named as the attorney-in-fact in the power of attorney form.A California power of attorney can be durable or nondurable. A durable power of attorney allows the attorney-in-fact to continue to act on behalf of the principal even if the principal is no longer able to manage his or her affairs due to a physical or mental disability.If the power of attorney form does not include a date when the attorney-in-factâ??s authority ends, the attorney-in-fact can continue to act on behalf of the principal until the power of attorney form is revoked (cancelled). In California the principal can give notice verbally or in writing to his/her attorney-in-fact that the attorney-in-factâ??s authority is revoked. If the attorney-in-fact is the spouse of the principal and their marriage is dissolved or annulled, the authority of the spouse as attorney-in-fact is revoked by California law. If the attorney-in-fact is acting under a nondurable power of attorney and the principal is no longer able to manage his or her affairs due to a physical or mental disability, the attorney-in-factâ??s authority is revoked by California law due to the principalâ??s inability to contract.

Question by thachick103: Question about Power of Attorney?
Okay, I have a question about Power of Attorney. I have a power of attorney on my disabled son from that state of Alabama. I went to Wal-Mart to cash his check with the power of attorney and both of our identification cards. The girl looked at the power of attorney form like she had no idea what to do, so she called management. Management told me that would not be able to cash the check with my power of attorney. I even told them what it was and it was a legal form, Can they do that?

Best answer:

Answer by bldrjck
I would suggest going to a bank and opening an account with the power of attorney and the check. Most retail stores are going to have a problem with a document like that. Most checking accounts come with a free check card which you don’t have to have any I.D. to use.

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