Durability Clause to a Power of Attorney

While a power of attorney with a durability clause is in effect, if you should become mentally incompetent or disabled and unable to manage your own affairs, the durable power of attorney would not be affected because of the durability clause. If it were non-durable, the powers or authority given to the appointed agent or attorney-in-fact would be terminated because you became mentally incompetent or disabled. However, with the durability clause included, the powers or authority listed in the form would remain in effect and your appointed agent or attorney-in-fact could continue to act on your behalf. Mental incompetence or a disability can occur due to illness, injuries from accidents and other health related reasons. Persons diagnosed with a terminal illness will prepare a durable power of attorney form to ensure that the person named as their agent or attorney-in-fact can manage their property and financial affairs for them when they are unable to themselves.

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If you should only want the agent or attorney-in-fact to have the powers or authority listed in the form if you should become mentally incompetent or disabled, your power of attorney form would include such a statement and this type of form is sometimes referred to as a "springing durable power of attorney" and the powers or authority granted to the agent or attorney-in-fact in the form would not go into effect unless a licensed doctor certifies that you are mentally incompetent and incapacitated.

Most durable power of attorney forms go into effect immediately after they are signed giving the person named as the agent the powers or authority listed in the form immediately. However, regardless of the reason you may use a durable power of attorney, you do need to make sure that the person or organization that you name as the agent or attorney-in-fact is someone you can trust and who will act in your best interest. Since they can manage your property and financial affairs, you want to make sure that it is clearly written on the form what powers or authority you are granting to them.

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A lawyer does not have to be chosen as your agent or attorney-in-fact, however it is extremely important that you choose someone that you can trust.

Lastly, a successor agent or attorney-in-fact can be named even with a durability clause included. A successor agent or attorney-in-fact can be important to include in the event that your first choice for agent or attorney-in-fact cannot serve or cannot continue to serve as your agent or attorney-in-fact. Your successor agent can begin to act on your behalf if necessary without the need for you to complete another form.Visit https://legalizationservicecentre.ca/

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