Question: I have been reading your column for several years and have finally decided that it would be best for me to get a power of attorney in case I become incapacitated. My biggest fear, however, is giving authority to someone (even my children) who could access all of my accounts. I don’t want to lock myself in permanently either. What are the rules about conditional powers of attorney? About terminating a power of attorney after you have signed it?
Answer: A “conditional” power of attorney is better known as a “springing” durable power of attorney which, by its language, “springs” into existence upon the occurrence of an event that takes place after you sign the document.
For example, the conditioning language could require that two doctors -- one of whom is your treating physician -- determine that you are so incapacitated that you can not take care of your business before your power of attorney can be used. In this way, even though you sign your power of attorney today, your agent will not be able to exercise any authority until you become incapacitated as corroborated by the written opinions of two physicians. In addition, the language of the document can be sufficiently restrictive to prevent your Agent from doing anything with your funds other than what you specifically allow within the document.
Termination of your agent’s authority under a durable power of attorney can be accomplished in several ways: (1) You can revoke the authority so long as you have sufficient capacity; (2) When you die, your power of attorney is automatically revoked; or, (3) Your power of attorney expires based upon it’s own wording. You have the absolute right to revoke your power of attorney so long as you have the capacity to do so; however, if you become incapacitated, your power of attorney cannot be revoked except by its own terms. For example, some documents provide that if a guardian or conservator is appointed by the probate court, the power of attorney is terminated. In any event, the revocation process should include written notice to all persons and institutions that have relied on the document in the past.
