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Estate Planning

Durable Power of Attorney (POA)

Allows a person (agent, usually denominated as attorney-in-fact) to conduct your affairs if you are not present or not able.

Durable means it is not terminated by the principal’s incapacity

Power of Attorney Form

When is the POA effective

The POA will be effective as of the date signed unless the POA is made contingent (springing)

Am I responsible for my agents decisions?

"All acts done by an attorney in fact pursuant to a durable power of attorney . . . have the same effect and inure to the benefit of and bind the principal and his or her successors in interest . . ." §26-1-2(b), Code of Alabama (1975)

May I appoint more than one agent?

You may appoint a primary agent and an alternate or you may appoint two or more agents to act jointly. For example, I appoint my spouse but if they are unable or unwilling then I appoint my two children to act jointly.

May the bank ignore my appointment?

A person that refuses in violation of this section [§26-1A-120] to effect a transaction in reliance upon an acknowledged POA is subject to, as its sole liability,

  • a court order mandating that the person effect such transaction in reliance upon the POA, and
  • liability for reasonable attorney’s fees and costs incurred in any action or proceeding that confirms the validity of the POA

What authority does the agent have?

  • The POA can be general in which case the agent can do anything the principal could have done, e.g. empty the bank account, sell the car, borrow money.
  • Alternatively, the POA could be limited in which case the principal lists the powers the agent has.

When is the POA terminated?

The POA terminates

  • at the death of the principal
  • when the principal revokes the POA
  • when the POA provides that it terminates
  • when the purpose is accomplished
  • if the agent dies, becomes incapacitated or resigns

Is there a POA form?

A document substantially in the following form may be used to create a power of attorney that has the meaning and effect prescribed by this chapter." §26-1A-301. (Power of attorney form)

Unlike the Advance Directive you may use this form or any other format.