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Indiana Durable Power of Attorney Laws, what is a durable power of attorney.#What #is

Indiana Durable Power of Attorney Laws

There is a legal arrangement, called a “durable power of attorney,” which gives a named individual authority to make decisions related to an incapacitated patient’s health care. Under Indiana durable power of attorney laws, the named individual (or attorney-in-fact ) is granted the ability to make decisions related to care, treatment, and whether to continue life support. For example, a durable power of attorney can allow the named person to decide whether or not the patient should remain connected to a respirator. However, if these decisions are made in a living will, those must be honored.

Indiana Durable Power of Attorney Laws at a Glance

Indiana durable power of attorney laws are highlighted below, along with details about the specific powers, legal requirements, revocation, and state-to-state validity. You can visit FindLaw’s Wills and Durable Power of Attorney for Health Care section to learn more.

16-36-1-1, et seq. Health Care Consent

Specific Powers, Life-Prolonging Acts

Appoint a representative to act in matters affecting the appointer’s health care: any care, treatment, service, or procedure to maintain, diagnose, or treat an individual’s physical or mental condition including admission to a health care facility and disclosure of medical records to health care provide; this appointment does not affect individual’s authorization re: life-prolonging measures (i.e. a living will)

Legal Requirements for Durable Power of Attorney

(1) In writing; (2) signed by appointer; (3) witnessed by adult; (4) may specify conditions and terms of the authority delegated; (5) begins when appointer becomes incapable of consenting

Revocation of Durable Power of Attorney

Individual capable of consenting to health care may revoke appointment at any time by notifying representative or health care provider orally or in writing. Individual who may consent to his own health care may disqualify others from consenting or revoking appointment for the individual (disqualification must be in writing)

The Durable Power of Attorney: Health Care and Finances, what is a durable power

The Durable Power of Attorney: Health Care and Finances

What if an accident or illness — or simply the effects of aging — left you unable to tell your doctors what kind of medical treatment you want, or made it impossible to manage your financial affairs? No one likes to consider such grim possibilities, but the truth is that almost every family will eventually face this kind of difficulty. While medical and financial powers of attorney can’t prevent accidents or keep you young, they can certainly make life easier for you and your family if times get tough.

A power of attorney is a legal document that gives someone you choose the power to act in your place. In case you ever become mentally incapacitated, you’ll need what are known as “durable” powers of attorney for medical care and finances. A durable power of attorney simply means that the document stays in effect if you become incapacitated and unable to handle matters on your own. (Ordinary, or “nondurable,” powers of attorney automatically end if the person who makes them loses mental capacity.)

With a valid power of attorney, the trusted person you name will be legally permitted to take care of important matters for you — for example, paying your bills, managing your investments, or directing your medical care — if you are unable to do so yourself.

Taking the time to make these documents is well worth the small effort it will take. If you haven’t made durable powers of attorney and something happens to you, your loved ones may have to go to court to get the authority to handle your affairs.

To cover all of the issues that matter to you, you’ll probably need two separate documents: one that addresses health care issues and another to take care of your finances. Fortunately, powers of attorney usually aren’t difficult to prepare.

Medical Power of Attorney

A medical power of attorney is one type of health care directive — that is, a document that set out your wishes for health care if you are ever too ill or injured to speak for yourself.

When you make a medical power of attorney — more commonly called a “durable power of attorney for health care” — you name a trusted person to oversee your medical care and make health care decisions for you if you are unable to do so. Depending on where you live, the person you appoint may be called your “agent,” “attorney-in-fact,” “health care proxy,” “health care surrogate,” or something similar.

Your health care agent will work with doctors and other health care providers to make sure you get the kind of medical care you wish to receive. When arranging your care, your agent is legally bound to follow your treatment preferences to the extent that he or she knows about them.

To make your wishes clear, you can use a second type of health care directive — often called a “health care declaration” or “living will” — to provide written health care instructions to your agent and health care providers. To make this easier, some states combine a durable power of attorney for health care and health care declaration into a single form, commonly called an “advance health care directive.”

For more information about preparing documents to direct your health care, see the article The Living Will and Power of Attorney for Health Care: An Overview.

Financial Power of Attorney

A financial power of attorney is a power of attorney you prepare that gives someone the authority to handle financial transactions on your behalf. Some financial powers of attorney are very simple and used for single transactions, such as closing a real estate deal. But the power of attorney we’re discussing here is comprehensive; it’s designed to let someone else manage all of your financial affairs for you if you become incapacitated. It’s called a “durable power of attorney for finances.”

With a durable power of attorney for finances, you can give a trusted person as much authority over your finances as you like. The person you name is usually called your “agent” or “attorney-in-fact,” though he or she most definitely doesn’t have to be an attorney.

Your agent can handle mundane tasks such as sorting through your mail and depositing your Social Security checks, as well as more complex jobs like watching over your retirement accounts and other investments, or filing your tax returns. Your agent doesn’t have to be a financial expert; just someone you trust completely who has a good dose of common sense. If necessary, your agent can hire professionals (paying them out of your assets) to help out.

Why You Need Separate Documents for Medical Care and Finances

You may wonder why you can’t cover health care matters and finances in just one power of attorney document. Technically, you could — but it isn’t a good idea. Making separate documents will keep life simpler for your agent and others.

For example, your health care documents are likely to be full of personal details, and perhaps feelings, that your financial broker doesn’t need to know. Likewise, your health care professionals don’t need to be burdened with the details of your finances.

That said, even though you should make separate power of attorney documents for health care and finances, it makes a good deal of sense to name the same agent under both documents. If not, you must be sure to name people who will work well together.

To learn more about durable powers of attorney, see Plan Your Estate, by Denis Clifford (Nolo).

Legal Aid Organizations Providing Help to Inmates and Families, free legal help.#Free #legal #help

Legal Aid Services

Washington, D.C. 20005

The ACLU National Prison Project offers some general legal advice but is primarily involved in large class action lawsuits that challenge conditions of confinement. They do not represent individuals.

California Indian Legal Services

Oakland, CA 94612

This organization provides legal representation to low-income Native Americans. They do not usually handle criminal cases.

California Innocence Project

San Diego CA 92101

Tel: (800) 255-4252 (619) 239-0391

CIP is a law school program operating out of the Institute for Criminal Defense Advocacy of California Western School of Law.

Centurion Ministries, Inc.

Princeton NJ 08542-3215

Centurion Ministries (CM) is a nonprofit organization with headquarters in Princeton, New Jersey. CM has a national network of attorneys and forensic experts who ably assist us in our work on behalf of the convicted innocent throughout the U.S. and Canada. The primary mission of CM is to vindicate and free from prison those who are completely innocent of the crimes for which they have been unjustly convicted and imprisoned for life or death. We also assist our clients, once they are freed, with reintegration into society on a self-reliant basis. CM has a very narrow criteria for the types of cases that we will consider reviewing. Please review our stated criteria:

  1. We only consider murder or rape cases within the U.S. as well as Canada that carry a life or death sentence. We do NOT consider self-defense or accidental death cases. We will only consider a rape case if there is the possibility of using DNA testing to clear the convicted person. We do NOT consider child sex cases unless the case has physical evidence that could be scientifically tested to prove innocence.
  2. You must be absolutely 100% innocent of the crime and have had absolutely no involvement whatsoever with the crime.
  3. You must be indigent and have largely exhausted your appeals.
  4. We are NOT lawyers and, therefore, we do NOT offer legal assistance to those who petition us for help. We CANNOT make referrals to attorneys. If the inmate does fit ALL of our criteria, their initial letter to us should be brief, outlining the facts of the crime, and what led to their arrest for the crime. Inmates should NOT send briefs or transcripts of other materials! We just want to hear the facts in the inmate’s own words. We in turn will send them a letter that outlines exactly what information we want, and what they can expect from us in the way of assistance.

Disability Rights Education Defense Fund

Berkeley, CA 94710

This organization provides legal and other types of referrals to prisoners with disability issues. They do not provide individual representation.

Freedom Foundation

San Quentin, CA 94964

This legal agency assists in carefully selected cases where prisoners claim to be falsely accused or convicted. They enter the case after the appellate process has been completed. The screening process takes up to a year and only a few cases are selected each year.

Grassroots Investigation Project (GRIP)

Hyattsville MD 20722

Tel: (301) 699-0042

Innocence Project

55 5th Ave 11th Floor

New York, NY 10003

Innocence Project Northwest

1100 NE Campus Parkway

Seattle, WA 98105-6617

These legal aid organizations provide pro bono representation to prisoners who are wrongly convicted of serious crimes, who no longer have a right to an attorney, and where there is an actual claim of innocence.

Legal Services for Prisoners with Children

San Francisco, CA 94102

Lewisburg Prison Project

Lewisburg PA 17837

Tel: (570) 523-1104

Lewisburg Prison Project educates prisoners as to their civil rights and distributes a variety of legal bulletins and publications, written in non-technical laymen’s terms, at a minimal cost. We accept stamps and self addressed stamped envelopes as payment. Write for a free list of materials offered.

National Clearinghouse for the Defense of Battered Women

Philadelphia, PA 19107

This organization provides resources and other support to battered women who have been charged or convicted of crimes resulting from their abuse. While the National Clearinghouse does not provide direct legal representation, it offers technical assistance to defense teams working on behalf of battered women defendants.

The National Death Row Assistance Network of CURE (NDRAN)

Peaks Island ME 04108

The National Death Row Assistance Network of CURE is a new organization formed to help death row prisoners across the United States gain access to legal, financial, and community support and to assist individual prisoner’s efforts to act as self-advocates.

National Lawyers Guild

New York NY 10016

Tel: (212) 679-5100

The National Lawyers Guild is an association dedicated to the need for basic change in the structure of our political and economic system. “We provide self-help law kits free of charge to assist inmates in representing themselves and their own cases or in assisting others.” The self-help kits are written in an easy to use language that tells you how to file civil complaints, how to deal with grievances, and most other legal matters that you would encounter in the course of being imprisoned.

National Legal Aid Defender Association

Washington, DC 20036

Serves the broad equal justice community.

Penal Law Project

This organization provides legal referrals and information packets on the following topics: Habeas Corpus, the 602 appeals process, Three Strikes, civil rights action, expunging a criminal record, and parolee rights.

Prisoner’s Rights Union

Sacramento, CA 94812

This groups publishes over 40 self-help legal manuals available at low or no cost to prisoners.

The Prisoner’s Guide to Survival

413-B 19th St #168

Lynden WA 98264

Tel: (800) 557-8868

A comprehensive legal assistance manual for post conviction relief and prisoners’ civil rights actions. 750 pages, soft cover, $49.95 for prisoners. No matter what your legal or educational background, The Prisoner’s Guide to Survival will help you learn how to research the law, study your rights, determine your legal options, and take the necessary steps to protect your rights or challenge an illegal conviction or sentence. Complex issues are explained in plain language so that even if you don’t have an attorney, you can make an informed decision regarding your legal choices. The Survival Guide includes: current legislation and court decisions affecting prisoners, actual-size example forms for Appeals, Habeas Corpus actions, Motions, Constitutional rights complaints for state and federal prisoners, and much more.

Prisoner’s Self-Help Litigation Manual

Oceana Publications, Inc.

Dobbs Ferry NY 10522-1601

Tel: (914) 693-8100

Prison Law Office

San Quentin, CA 94964

The Prison Law Office is a non-profit law office that offers free legal services to people in California prisons regarding conditions of confinement, and provides self-help legal manuals on various topics including parole hearings, Habeas Corpus, and suing a public entity. We also offer numerous self-help law manuals free of charge.

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How to Write a Free Durable Power of Attorney, LegalZoom Legal Info, what is

How to Write a Free Durable Power of Attorney

A durable power of attorney document gives another person the power to make your healthcare or financial decisions if you become incapacitated. The power to handle your affairs for you lasts for as long as you are unable to make decisions yourself. Writing your own free durable power of attorney may be a good choice if you are trying to handle your own end-of-life affairs at minimal costs.

What is a durable power of attorney

A durable power of attorney document gives another person the power to make your healthcare or financial decisions if you become incapacitated. The power to handle your affairs for you lasts for as long as you are unable to make decisions yourself. Writing your own free durable power of attorney may be a good choice if you are trying to handle your own end-of-life affairs at minimal costs.

Step 1

Write or type the date, your full name, and a statement that the document is your durable power of attorney and that you understand the powers the document gives another person if you are incapacitated. Put this information at the top of the page.

Step 2

Name the person to whom you wish to give power of attorney. You may also wish to include additional identifying information, such as his relationship to you or his address. Specify whether he should have durable power of attorney for healthcare decisions, financial decisions, legal decisions or all three. Specify that the power of attorney should last only as long as you are unable to make decisions for yourself, and that it should expire once you regain the capacity to make your own decisions.

Step 3

Write down any specific instructions you wish to leave with the person to whom you are giving power of attorney. For instance, if you want the person with power of attorney to consult your spouse or a professional before making certain decisions, write an instruction explaining who the person with power of attorney should consult and when. If you are creating a durable power of attorney for healthcare, you may specify certain kinds of care you do or do not want, such as life support.

Step 4

Sign and date your durable power of attorney at the bottom of the page. In most states, a durable power of attorney must be witnessed by at least two witnesses in order to be legal. Your witnesses should be of sound mind, at least eighteen years of age, not related to you and not the person named to receive power of attorney in the document. Some states also require a durable power of attorney to be notarized in addition to being witnessed.

Durable Power of Attorney – NYC Caregiver: Making it easier to care, what is

Legal Information

Durable Power of Attorney

The “durable power-of-attorney” is one of the most powerful planning tools that an attorney can recommend to a client, not only for estate planning, but also for Medicaid and other entitlement programs.

When a person (the principal) signs a power-of-attorney, he gives another person (the agent) the power to act in his place and on his behalf in managing his assets and affairs. The agent’s powers may be broad and sweeping so as to include almost any act which the principal might have performed. It should be noted, however, that, in general, acts which are inherently testamentary in nature, such as the authority to make or revoke a will, may not be performed by an agent.

A power-of-attorney can be either a “general” power-of-attorney, where the agent may perform almost any act the principal might have performed himself regarding the financial management of his affairs, or a “limited” power-of-attorney where the agent has one or more specific powers, such as the power to sell a particular property to a particular purchaser at a particular time.

A single principal may name one or more agents who can be authorized to act either “jointly” or “severally” (alone without the signature of the other agent or agents).

The “durable” power-of-attorney is unlike the ordinary power-of-attorney in that it does not become inoperative upon the incapacity of the principal. The durable power-of-attorney provides that those powers granted to the agent will not be affected by the subsequent disability or incapacity of the principal or by the lapse of time.

In drafting powers-of-attorney, care should be given to confer powers with as much specificity as possible in order to avoid the possibility of a court construing a specific omission as an intent to fail to grant that specific power. Such an adverse finding could be a serious detriment to the principal’s assets.

The power-of-attorney for asset management in the case of a seriously ill or disabled person is especially useful in situations where the person’s assets may be modest and, accordingly, do not warrant the expense associated with other planning techniques such as trusts or guardianships.

The great advantage of the durable power-of-attorney is that it remains effective after the principal’s incapacity. The agent, therefore, can act immediately upon the principal’s incapacity to manage his assets or to take various measures without initiating costly and time-consuming guardianship proceedings to obtain the court’s authorization for such transactions.

In a few states, the principal is allowed to delegate to the agent in the durable power-of-attorney various health care powers in addition to control over financial matters. In New York State, however, a health care power-of-attorney or proxy must be a separate document from a power-of-attorney.

Avast, Download Free Antivirus for PC, Mac – Android, free legal advice.#Free #legal #advice

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Power of attorney legal definition of power of attorney, what is the power of

power of attorney

A written document in which one person (the principal) appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal. Powers of attorney are routinely granted to allow the agent to take care of a variety of transactions for the principal, such as executing a stock power, handling a tax audit, or maintaining a safe-deposit box. Powers of attorney can be written to be either general (full) or limited to special circumstances. A power of attorney generally is terminated when the principal dies or becomes incompetent, but the principal can revoke the power of attorney at any time.

A special type of power of attorney that is used frequently is the durable power of attorney. A durable power of attorney differs from a traditional power of attorney in that it continues the agency relationship beyond the incapacity of the principal. The two types of durable power of attorney are immediate and springing. The first type takes effect as soon as the durable power of attorney is executed. The second is intended to spring into effect when a specific event occurs, such as the disability of the principal. Most often, durable powers of attorney are created to deal with decisions involving either property management or health care .

Durable powers of attorney have become popular because they enable the principal to have her or his affairs handled easily and inexpensively after she or he has become incapacitated. Before the durable power of attorney was created, the only way to handle the affairs of an incapacitated person was to appoint a guardian, a process that frequently involves complex and costly court proceedings, as well as the often humiliating determination that the principal is wholly incapable and in need of protection.

With a durable power of attorney, on the other hand, a principal can appoint someone to handle her or his affairs after she or he becomes incompetent, and the document can be crafted to confer either general power or power in certain limited circumstances. Because no judicial proceedings are necessary, the principal saves time and money and avoids the stigma of being declared incompetent.

The concept of the durable power of attorney was created in 1969 when the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Probate Code (U.P.C. 5 501). Ten years later, the provisions of the code dealing with the durable power of attorney were modified and published as the Uniform Durable Power of Attorney Act (UDPA). All fifty states recognize some version of the durable power of attorney, having adopted either the UDPA or the Uniform Probate Code, or some variation of them. Versions of the durable power of attorney vary from state to state. Certain powers cannot be delegated, including the powers to make, amend, or revoke a will, change insurance beneficiaries, contract a marriage, and vote.

Further readings

Insel, Michael S. 1995. Durable Power Can Alleviate Effects of Client’s Incapacity. Estate Planning 22 (February).

Rains, Ramona C. 1996. Planning Tools Available to the Elderly Client. American Journal of Trial Advocacy 19 (spring).


power of attorney

n. a written document signed by a person giving another person the power to act in conducting the signer’s business, including signing papers, checks, title documents, contracts, handling bank accounts and other activities in the name of the person granting the power. The person receiving the power of attorney (which means agent) is “attorney in fact” for the person giving the power, and usually signs documents as “Melinda Hubbard, attorney in fact for Guilda Giver.” There are two types of powers of attorney: a) general power of attorney which covers all activities, and b) special power of attorney which grants powers limited to specific matters, such as selling a particular piece of real estate, handling some bank accounts, or executing a limited partnership agreement. A power of attorney may expire on a date stated in the document or upon written cancellation. Usually the signer acknowledges before a notary public that he/she executed the power, so that it is recordable if necessary, as in a real estate transaction.

power of attorney

POWER OF ATTORNEY. Vide Letter of attorney, and 1 Mood. Or. Cas. 57, 58.

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Advice – definition of advice by The Free Dictionary, free legal advice.#Free #legal #advice


These nouns denote an opinion as to a decision or course of action: sound advice for the unemployed; accepted my attorney’s counsel; will follow your recommendation.

ad vice

  1. Advice after an evil is done is like medicine after death Danish proverb

It s quite common to substitute the word mischief for evil.

Professor Carvell s simile was specific to a proposal for investment research.


don t let anyone sell you a wooden nutmeg This bit of advice to the unwary to be on the lookout for fraudulent sales schemes derives from the 19th-century practice of selling imitation nutmegs made of wood.

A Yankee mixes a certain number of wooden nutmegs, which cost him 1-4 cents apiece, with a quantity of real nutmegs, worth 4 cents apiece, and sells the whole assortment for $44; and gains $3.75 by the fraud (Hill, Elements of Algebra, 1859)

This practice was supposedly prevalent in Connecticut, The Nutmeg State, although whether the sellers were itinerant peddlers or natives of Connecticut is debatable.

don t take any wooden nickels According to Wentworth and Flexner (Dictionary of American Slang), an Americanism equivalent to Good-bye, take care, protect yourself from trouble. A wooden nickel is a wooden disc or souvenir which costs a nickel but has no legal value. The exhortation may have originated as a reminder not to be duped into buying such a worthless thing. Popular in the early 1900s, don t take any wooden nickels is less frequently heard today.

In the mean wile [sic] until we meet again don t take no wood nickels and don t get impatient and be a good girlie and save up your loving for me. (Ring W. Lardner, The Real Dope, 1919)

keep your breath to cool your porridge This Briticism is an oblique admonition to mind your own business or practise what you preach.

kitchen cabinet A group of unofficial, personal advisers to an elected official. The original kitchen cabinet consisted of three friends of President Andrew Jackson who met with him frequently for private political discussions. They reportedly entered by the back door (perhaps through the kitchen) so as to avoid observation and were believed to have had more influence than Jackson s official Cabinet. Use of the expression dates from at least 1832.

One of the most important members of Gov. Stevenson s kitchen cabinet will be the new head of the State Department of Labor. (The Chicago Daily News, December, 1948)

reck one s own rede To follow one s own advice; to practice what you preach. Reck heed, regard appears only in negative constructions. Rede advice, counsel is now archaic and limited to poetical or dialectal use. This expression is found in Shakespeare s Hamlet.

Do not, as some ungracious pastors do,

Show me the steep and thorny way to heaven,

Whilst, like a puffed and reckless libertine,

Himself the primrose path of dalliance treads,

And recks not his own rede. (I,iii)

Today reck one s own rede is met only in literary contexts.

the tune the old cow died of Advice instead of aid, words in lieu of alms. This expression alludes to the following old ballad:

There was an old man, and he had an old cow,

But he had no fodder to give her, So he took up his fiddle and played her the tune;

Consider, good cow, consider, This isn t the time for the grass to grow,

Consider, good cow, consider.

Needless to say, the old cow died of hunger. Occasionally the tune the old cow died of is used to describe unmelodious or poorly played music.

The tune the old cow died of throughout, grunts and groans of instruments. (Countess Harriet Granville, Letters, 1836)


Advice / d’va s/ is a noun. If you give someone advice, you tell them what you think they should do.

Advice is an uncountable noun. Don’t talk about ‘ advices ‘ or ‘ an advice ‘. However, you can talk about a piece of advice.

Advise / d’va z/ is a verb. If you advise someone to do something, you say that you think they should do it.

If you say to someone ‘I advise you to. ‘, you are telling them that you think they should do it.

Don’t use ‘advise’ without an object. Don’t say, for example, ‘ He advised to leave as quickly as possible ‘. If you don’t want to say who is receiving the advice, you say ‘His advice was to leave as quickly as possible’.

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General Power of Attorney in Texas, LegalZoom Legal Info, power of attorney texas.#Power #of

General Power of Attorney in Texas

A general power of attorney is an all-encompassing document in Texas. It allows someone else, called your “agent” or “attorney-in-fact,” to handle all your personal affairs without limitation. The individual you select does not have to be a lawyer; she can be your spouse, another relative or your best friend.

Power of attorney texas

A general power of attorney is an all-encompassing document in Texas. It allows someone else, called your “agent” or “attorney-in-fact,” to handle all your personal affairs without limitation. The individual you select does not have to be a lawyer; she can be your spouse, another relative or your best friend.

Legal Requirements

Your power of attorney can only authorize your agent to act on your behalf if you have your signature notarized. Texas does not require that you have the signatures of witnesses in addition to that of a notary. Your agent is not required to sign your GPOA. You don’t have to file your power of attorney with the court. However, if you’re entrusting your agent to buy or sell real estate for you, you do have to record the power of attorney with the clerk in each county where the property is located.


Texas does not have a statutory form you must follow to write a general power of attorney; there are no precise format or language requirements. However, it’s important to include your name as it appears on your accounts, your address, and the identity of the individual you’re naming as your agent. Because you’re giving her general, not limited, power of attorney, state that she has “full power and authority” to do anything you can do yourself. You can itemize a list of her powers if you like, but you run the risk of excluding her from doing something you might forget to mention.


A general power of attorney is not the same as a health care power of attorney, which Texas recognizes also. The latter allows your agent to make only medical decisions on your behalf. A GPOA does not usually authorize your agent to make health care decisions; it empowers her to deal with all your financial and personal business interests. Section 4898 of the Texas code requires your agent to keep a record of and report to you all actions she takes on your behalf.


Your power of attorney terminates when and if you become mentally incapacitated unless it specifically states that you’re appointing your agent to act on your behalf then as well. Such language makes it a “durable” power of attorney. You can also state that you don’t want your power of attorney to go into effect unless you become incapacitated. This is a “springing” GPOA. Regardless of the type of power of attorney, your death rescinds your agent’s power to handle your affairs.


If your GPOA is springing, Texas requires that your agent have authorization to begin her duties. Written confirmation from your doctor usually suffices, but check with a professional when you write your document if you want her to provide more proof than that or want to waive the requirement entirely.

How Many Agents Should You Name on Your Durable Power of Attorney, durable power

Planning for Life

Posted by Harry S. Margolis on August 27, 2013

In your durable power of attorney you can name one or

more Durable power of attorney for financesagents (technically called “attorneys in fact”) to step in and act for you on legal and financial matters in the even of incapacity. This can be your most important estate planning instrument and can save your family a lot of trouble and expense if you were injured, became ill, or were to suffer from dementia.

While everyone should have a durable power of attorney if they have someone to name who they trust, who to name and whether to name more than one agent can be difficult questions. An attorney recently posted the following inquiry on a legal listserv, giving rise to a spirited discussion on who the number of agents to appoint on a durable power of attorney:

Client, age 88, has two daughters, both competent. Client proposed daughter A hold the PoA, and daughter B as the alternate (triggered per the form by death, resignation, etc., of daughter A). Daughter B says A is away from time to time, and so they should jointly hold the power. I’ll check with the client, but assume she’s indifferent. So – do I create one PoA with two joint holders, or two separate PoA’s naming A on one and B on the other?

As a starting point, clients should name people they trust and who are organized and financially responsible. Also, if possible, they should choose an agent who is trusted by others in the family and who will communicate well with them. We’ve often seen situations where agents are doing a good job, but their lack of communication with other family members leads to suspicions and accusations of misconduct.

Many clients are concerned that if they name one child on a power of attorney and not others that this will seem like favoritism — the parent saying that this child is more trustworthy and fiscally responsible than the others. So, they ask about naming more than one child as agent. Doing so can also solve some of the communication issues, since all those named will have access to financial accounts and information and the agents should coordinate their actions. It’s also less likely that the appointed agent will abuse her power if she knows there’s oversight from others.

But appointing more than one agent raises some questions. First, is there a limit on the number? We generally prefer no more than two agents. Otherwise, the need to make decisions together can become cumbersome. However, some clients with three children don’t want to leave one out and do appoint all three.

Second, should the agents be able to act independently or should they be required to act together at all times? Unless the client has real concerns about his agents acting unilaterally without consulting one another, we strongly recommend that the durable power of attorney permit them to act on their own. It will be much more efficient if either agent can write checks. deal with financial institutions and sign contracts. The necessity of two signatures on every check and document will make it difficult for the agents get anything done, especially if one or both of them travel extensively. On the other hand, it does provide a strong check and balance.

This discussion anticipates that there is no problem in naming more than one agent under a durable power of attorney. However, the responses to the inquiry above revealed a difference of opinion among attorneys on this issue, with some stating that financial institutions will not accept powers of attorney naming more than one agent. Here’s what one attorney had to say:

My experience lately has been that the institutions reviewing the DPOAs have been reluctant to accept a document naming two persons as co-AIFs since one may countermand the other. And, it’s also not clear in the law that you can have two DPOAs executed consecutively to two different people without voiding the first; nor that having two DPOAs in place might not also present a countermanding issue.

Our experience has been somewhat different. I asked the other attorneys in our office if they had run into the problem with documents with two agents being rejected by financial institutions and no one had to date. In addition, we have always been uncomfortable with the idea of two separate documents naming two different agents. There is the issue of one countermanding the other, but also the problem of communication and lack of transparency. If daughter A goes to bank X with her power of attorney to conduct financial transactions, won’t bank X be surprised and confused when daughter B shows up with her totally separate document?

Successor agents can also be problematic since the bank is going to want to have proof that the first agent cannot act, whether due to death, disability or other unavailability. It’s not always clear what evidence will be accepted as satisfactory. For instance, husband names wife as his attorney in fact and son as her alternate. Husband becomes demented. Wife acts for him under his durable power of attorney, but over time gets exhausted by everything she has to do. Son offers to step in and help out with bill paying and other financial tasks. Must wife then resign as attorney in fact for her husband? What then happens when son goes to Europe on vacation? Wouldn’t it be easier and more flexible if son and wife could both act for husband, one carrying out some tasks and the other taking on specific responsibilities.

Clearly, every situation is different and requires a different solution. But here are a few rules of thumb:

Appoint someone you trust.

Consider appointing two people if that will make it easier to carry out the functions and will facilitate communication.

Provide that each agent may act independently unless you feel a real need for checks and balances.

Then execute a durable power of attorney so that one or more people will be in place if you become incapacitated due to injury or illness. This will save you and your family from considerable expense and frustration.

Durable power of attorney for finances