An enduring power of attorney is a power of attorney (POA) in which a person grants another person the authority to make financial and medical decisions in the principal’s name, in case the principal reaches a state in which s/he cannot understand matters and make informed decisions. An enduring POA can be given when a person is in control of all faculties and remain valid when that person is no longer of sound mind or in control of his/her body. The POA is submitted to the offices of the Public Trustee, which is advantageous as it is binding on everyone. Until an amendment to the law, appointing a trustee for property and medical issues required the submission of a request to the court, which was a long and complicated procedure that almost completely rescinded all authority from the other. Furthermore, when a person signs an enduring POA, s/he is subject to the duty to inform, i.e. someone has to know the document has been signed.
An enduring POA must be signed by the principal when s/he still possesses all his/her mental faculties and can make decisions about his/her own affairs. Deterioration in this state may be due to an accident, age-related illness (such as dementia), emotional incapacity, mental incapacity, or any other incapacity liable to affect the principal’s judgement.
The attorney-in-fact, i.e. the agent granted the POA, must, in the presence of an attorney, sign a document saying s/he will act on the basis of the principal’s instructions and wishes. Obviously, if the principal requests that a law be violated, the grantee cannot honor the principal’s wishes, and the grantee must request instructions from the court on how to act.
Because the appointment of a POA is often attended by jealousy or the inability to handle all matters on his/her own (this is especially true in the case of a POA grantee for large businesses and companies), the principal may divide the POA into several sections, giving separate grantees authority regarding separate matters. The principal may also decide the s/he prefers the separate grantees work together or separately, the scope of authority and responsibility of each grantee, and also who has the final say should the various grantees disagree.
An enduring POA relates both to the personal welfare and the economic welfare of the principal. Thus, to prepare for the case in which the principal is incapacitated, an enduring POA can be drawn up that deals solely with the principal’s medical condition for making decisions on placing the him/her in a hospital, leaving him/her at home, receiving medication A or therapy B, etc. The same is true of an enduring POA for financial affairs only. The principal may select the person who will serve as his/her grantee to handle all or only some of his/her affairs. It is really up to the individual to determine his/her own preferences.
The attorneys in our firm have undergone specific training and are authorized to draw up enduring POAs in accordance with the “Law: Legal Competence and Guardianship 5722-1962.”