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What is an Enduring Power of Attorney?

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  • Written By: Daphne Mallory
  • Edited By: Melissa Wiley
  • Last Modified Date: 20 July 2018
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    Conjecture Corporation
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An enduring power of attorney is a legal document that authorizes the attorney to manage the property, business, and legal affairs of the person signing the document, called the donor. The attorney is not a legal professional necessarily, but any person or entity the donor chooses to act on his or her behalf. The major difference from a general power of attorney is that an enduring power of attorney remains valid even after the donor becomes mentally incapacitated. It has been replaced by a lasting power of attorney in some jurisdictions under the Mental Capacity Act, but those jurisdictions will still recognize and register a document made prior to the act, which was enacted in 2005.

Individuals can either draft an enduring power of attorney to take effect as soon as it’s signed by the donors and witnesses or when a specific event named in the document occurs. For example, the donor may want to have an attorney in place only in the event the donor becomes mentally incapacitated. That will trigger the rights authorized in the power of attorney, and it remains in effect until the donor revokes it or dies.

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The Mental Capacity Act that is law in Wales and England prohibits the creation of all new enduring powers of attorney. It also prohibits individuals from making changes to an existing one, but one that was made prior to the act will remain valid. The alternative is to create a lasting power of attorney, which can either address health and medical affairs or property and financial affairs. Individuals can also create a lasting power of attorney that addresses the issues not found in an existing enduring power of attorney. The two can exist together, and donors have to be careful that they do not contain conflicting provisions.

Individuals can only revoke this document if they still have the mental capacity to do so, and it terminates when the donor dies. A deed of revocation is often used when revoking one that is unregistered. Any legal document is sufficient to revoke it as long as it was executed in the manner of the original power of attorney. That includes obtaining the same number of signatures from witnesses, who don’t have to be the same witnesses who signed the first document. A court has to approve the revocation of one that’s registered, and individuals often solicit the help of legal counsel to help get it revoked through the court process.

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Melonlity
Post 2

@Terrificli -- Good point and I get the idea that if the durable power of attorney could survive death then wills could replace trusts as a great way to leave property after death.

Well, there would still be tax reasons to establish trusts, but a lot of people could go for the less expensive will if a power of attorney could survive death. Legislation, anyone?

Terrificli
Post 1

This is also called a durable power of attorney and can be a malpractice trap for lawyers who don't quite understand that they expire at death.

Let me explain. Let's say you had someone with real estate trying to decide between drafting a will and putting a trust together. Some lawyers have wrongly advised clients that a will with a durable power of attorney is fine because the executor can be given that power and can dispose of real estate without having to go through probate (don't laugh -- I have seen that happen).

Obviously, that is some terrible estate planning if someone wants to avoid probate. A trust can keep real estate out of probate, but a will almost never can.

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