Suspension, Termination and Conflicts Related to Advance Directives and Powers of Attorney
Powers of attorney are commonly used tools, but few people take the time to really understand how they work. This includes lawyers and laypersons. Depending on whether a power of attorney is considered durable, there are certain events, such as subsequent incapacity of the principal, that may limit or prevent the agent from exercising his enumerated powers under the power of attorney instrument.
Let’s look at just some of the events that can lead to the suspension or termination of a power of attorney. First, if the power of attorney is not durable, meaning it does not contain specific language specified in the statute, the following events will terminate the power of attorney. 1) the director dies, 2) becomes incapacitated. Of course, a subsequently executed “poa” that expressly revokes all previous ones will also terminate it.
If the poa is durable, the scenario mentioned above is slightly different. While the death of the principal still results in termination, the subsequent incapacity of the principal can result in numerous scenarios. If a petition is filed to determine the principal’s incapacity, the powers granted in the power of attorney are suspended until the petition is dismissed or the court issues an order authorizing the agent to exercise the powers granted. Some powers, such as the power to make health care decisions for the principal, remain in effect until the court orders otherwise.
In emergency situations, if the agent believes that it must act on behalf of the principal, the agent may request or “petition” the court to allow it to exercise powers that are otherwise suspended after a petition for incapacity is filed .
Other problems arise when powers of attorney conflict with advance directives that the principal may have executed and that may have given different persons authority to act on his or her behalf. These disputes sometimes involve family members who have different opinions about what is best for the principal. The law provides that if an advance directive and a poa conflict, the advance directive controls unless the poa is later executed and expressly states otherwise.
While do-it-yourself power of attorney forms and other documents such as a living will and advance directive are readily available, understanding how these tools interact and often conflict requires a little patience and, in many cases, some legal advice.
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