A power of attorney is a written document allowing a person to designate another as his attorney in fact. This allows the designated person to take actions on behalf of an individual in accordance with the powers granted in the document or which are allowed under law. The designation or powers can commence immediately or be delayed based on some condition or circumstances which must be satisfied before the power to acts becomes effective. If delayed, the power is said to “spring” to life upon an event or circumstance and is thus sometimes called a springing power of attorney.

A durable power of attorney is a power of attorney by which a principal, in writing, designates another as his attorney in fact. Here the writing must show the principal’s intent was for the authority to continue in the event of the principal’s disability or incapacity. This can be accomplished by using specific wording such as, “This power of attorney shall not be affected by subsequent disability or incapacity of the principal”, or “This power of attorney shall become effective upon the disability or incapacity of the principal.”

Acts taken by an attorney in fact under a durable power of attorney have the same effect and are binding on the principal as if the principal were competent and not disabled.

What happens when there is a court appointed conservator, guardian of the estate? The attorney in fact becomes accountable to an appointed fiduciary as well as to the principal and the fiduciary is given the power to revoke or amend the power of attorney.

Yes. Within a durable power of attorney you may nominate the conservator, guardian of your estate, or your guardian for the court’s consideration. Except in limited cases, the court will makes its appointment in accordance with your most recent nomination.