OAKNet: Abuse of Older Adults - ENDURING POWER OF ATTORNEY

Enduring Power of Attorney

What is an Enduring Power of Attorney?

What does an Enduring Power of Attorney do?

What are the requirements to make an Enduring Power of Attorney valid?

What is an Enduring Power of Attorney?

It is a legal document whereby a person gives another person or persons authority to deal with property, financial, or asset matters on their behalf. It can only deal with financial matters.

The document can take effect immediately or at a specific time in the future. If the intention is for the power of attorney to continue if the maker of the document becomes physically or mentally incapacitated, the document must specifically state this fact. Physical or mental incapacity will automatically revoke a power of attorney unless it specifically acknowledges that it will continue.

The Enduring Power of Attorney must be made when the maker of the document is an adult in good mental health. This person is referred to as the donor.

The person or persons to whom the authority is given is called the attorney. The document will set out the extent of the delegated powers.

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What does an Enduring Power of Attorney do?

It can provide for alternate attorneys so that an attorney is appointed upon the cessation of appointment of another attorney or if the authority of the first attorney ceases to exist.

The attorney has the power to do anything that the document specifically gives authority for and which the donor can lawfully delegate to an attorney.

Subject to any terms in the document creating the Enduring Power of Attorney, the attorney can take action for the maintenance, education, benefits, and advancement of the donor's spouse and dependent children. This could include the attorney if he or she is the donor's spouse or dependent child.

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What are the requirements to make an Enduring Power of Attorney valid?

It must comply with the terms of the Power of Attorney Act.

The donor of the power of attorney must be an adult at the time the document creating the power of attorney is completed.

A person is not eligible to be an attorney unless he or she is an adult at the time the document creating the power of attorney is completed.

If the Enduring Power of Attorney is to take effect in the future, it must contain a statement confirming that it will take effect when the donor becomes mentally or physically incapacitated.

If the Enduring Power of Attorney is to take effect immediately, it must state that it will continue despite any mental or physical incapacity.

The Enduring Power of Attorney must be dated, be in writing and signed by the donor in the presence of a witness. If the donor is physically unable to sign, another person can sign on his or her behalf as long as it is in the presence of the donor and the witness.

NOTE: A person who is designated as the attorney or his or her spouse cannot sign on behalf of the donor.

The Enduring Power of Attorney must be signed by the witness when the donor is present.

NOTE: The following cannot witness the signing of an Enduring Power of Attorney: a person who is designated as the attorney, or his or her spouse; the spouse of the donor; anyone who signs the Enduring Power of Attorney on behalf of the donor, or his or her spouse.

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