Can a US Citizen Appoint a Relative Living Overseas a Power of Attorney
Full Question:
Answer:
A power of attorney that complies with the laws of the state may appoint a person who resides outside the country as the agent (attorney-in-fact) for the principal (person making the power of attorney). A power of attorney is governed by the law of the jurisdiction where the actions of the attorney-in-fact will be performed. Usuallly, this is where the property of the principal is located. It is generally not recommended to appoint an agent who resides in a different jurisdiction, unless the property or assets involved are also in the different jurisdiction. When the agent will be acting in more than one jurisdiction, separate powers of attorney for each jurisdiction are recommended.
The following is an Alabama statute:
§ 26-1-2. Creation of durable power of attorney; effect
of acts performed pursuant to durable power of attorney
during period of disability, etc., of principal;
appointment by court of guardian, etc., subsequent to
execution of durable power of attorney; effect of death of
principal upon agency relationship and validity of acts of
person acting under power of attorney; execution, etc., of
affidavit by person exercising power of attorney as to lack
of knowledge of revocation, etc., of power of attorney;
health care power of attorney.
(a) A durable power of attorney is a power of attorney by
which a principal designates another his or her attorney in
fact or agent in writing and the writing contains the words
"This power of attorney shall not be affected by
disability, incompetency, or incapacity of the principal"
or "This power of attorney shall become effective upon the
disability, incompetency, or incapacity of the principal"
or similar words showing the intent of the principal that
the authority conferred shall be exercisable
notwithstanding the principal's subsequent disability,
incompetency, or incapacity.
(b) All acts done by an attorney in fact pursuant to a
durable power of attorney during any period of disability,
incompetency, or incapacity of the principal have the same
effect and inure to the benefit of and bind the principal
and his or her successors in interest as if the principal
were competent, not disabled and not incapacitated.
(c)
(1) If, following execution of a durable power of
attorney, a court of the domicile of the principal appoints
a guardian, curator, or other fiduciary charged with the
management of all the property of the principal or all of
his or her property except specified exclusions, the
attorney in fact is accountable to the fiduciary as well as
to the principal. The fiduciary has the same power to
revoke or amend the power of attorney that the principal
would have had if he or she was not disabled, incompetent,
or incapacitated.
(2) A principal may nominate, by a durable power of
attorney, the guardian, curator, or other fiduciary for
consideration by the court if proceedings to appoint a
fiduciary for the principal are thereafter commenced. The
court shall make its appointment in accordance with the
most recent nomination of the principal in a durable power
of attorney except for good cause or disqualification.
(d)
(1) The death of a principal who has executed a written
power of attorney, durable or otherwise, does not revoke or
terminate the agency as to the attorney in fact or other
person who, without actual knowledge of the death of the
principal, acts in good faith under the power. Any action
so taken, unless otherwise invalid or unenforceable, binds
the successors in interest of the principal.
(2) The disability, incompetency, or incapacity of a
principal who has previously executed a written power of
attorney that is not a durable power does not revoke or
terminate the agency as to the attorney in fact or other
person who, without actual knowledge of the disability,
incompetency, or incapacity of the principal, acts in good
faith under the power. Any action so taken, unless
otherwise invalid or unenforceable, binds the principal and
his or her successors in interest.
(e) As to acts undertaken in good faith reliance thereon,
an affidavit executed by the attorney in fact under a power
of attorney, durable or otherwise, stating that he or she
did not have, at the time of the exercise of the power,
actual knowledge of the termination of the power by
revocation or of the death, disability, incompetency, or
incapacity of the principal is conclusive proof of the
nonrevocation or nontermination of the power at that time.
If the exercise of the power of attorney requires execution
and delivery of any instrument that is recordable, the
affidavit, when authenticated for record, is likewise
recordable.
(f) This section shall not affect any provision in a power
of attorney for its termination by expiration of time or
occurrence of an event other than express revocation or a
change in the principal's capacity.
(g)
(1) A principal may designate under a durable power of
attorney an individual who shall be empowered to make
health care decisions on behalf of the principal, in the
manner set forth in the Natural Death Act, if in the
opinion of the principal's attending physician the
principal is no longer able to give directions to health
care providers. Subject to the express limitation on the
authority of the attorney in fact contained in the durable
power of attorney, the attorney in fact may make any health
care decision on behalf of the principal that the principal
could make but for the lack of capacity of the principal to
make a decision, but not including psychosurgery,
sterilization, abortion when not necessary to preserve the
life of the principal, or involuntary hospitalization or
treatment covered by Subtitle 2 of Title 22. A durable
power of attorney executed pursuant to this section may be
revoked by written revocation signed and dated by the
principal or person acting at the direction of the
principal, or being obliterated, burnt, torn, or otherwise
destroyed or defaced in a manner indicating intention to
cancel or by a verbal expression of intent to revoke made
in the presence of a witness 19 years of age or older who
signs and dates a writing confirming an expression to
revoke.
(2) Notwithstanding anything in this section to the
contrary, an attorney in fact shall have the authority to
make decisions regarding provision, withholding, or
withdrawal of life-sustaining treatment and artificially
provided nutrition and hydration but only a. if
specifically authorized to do so in the durable power of
attorney, b. if the substantive provisions of the durable
power of attorney are in substantial compliance and if the
durable power of attorney is executed and accepted in
substantially the same form as set forth in the Alabama
Natural Death Act, and c. in instances of terminal illness
or injury or permanent unconsciousness, if the authority is
implemented in the manner permitted under the Alabama
Natural Death Act. All durable powers of attorney executed
prior to May 8, 1997, shall be effective to the extent
specifically provided therein notwithstanding the
provisions of this subsection. The decisions made by the
attorney in fact shall be implemented in accordance with
the same procedures set forth in the Alabama Natural Death
Act for health care proxies.
(3) Any authority granted to the spouse under a durable
power of attorney shall be revoked if the marriage of the
principal is dissolved or annulled, or if the parties are
legally separated or a party to divorce proceedings.
(4) Subject to any limitation in the durable power of
attorney, an attorney in fact may, for the purpose of
making a health care decision, request, review, and receive
any information, oral or written, regarding the principal's
physical or mental health, including medical and hospital
records, execute a release or other document required to
obtain the information, and consent to the disclosure of
the information.
(5) Under no circumstances shall the health care provider
of the principal or a nonrelative employee of the health
care provider of the principal make decisions under the
durable power of attorney. For purposes of this subsection,
a health care provider is defined as any person or entity
who is licensed, certified, registered, or otherwise
authorized by the laws of this state to administer or
provide health care in the ordinary course of business or
in the practice of a profession.
(6) No health care provider or any employee or agent
thereof who in good faith and pursuant to reasonable
medical standards follows the direction of a duly
authorized attorney in fact shall, as a result thereof, be
subject to criminal or civil liability, or be found to have
committed an act of unprofessional conduct for an action
taken thereunder. Any health care cost or liability for the
cost associated with any decision made pursuant to this
section shall be the same as if the health care were
provided as a result of the principal's decision relating
to his or her own care.
(7) Any person who, without the consent of the principal,
willfully conceals, cancels, or alters a durable power of
attorney or any amendment or revocation of the agency or
who falsifies or forges a durable power of attorney,
amendment, or revocation for purposes of making health care
decisions shall be civilly liable. In addition, those
persons shall be subject to the criminal penalties set
forth in the Alabama Natural Death Act.
(8) Any individual acting as an attorney in fact under a
duly executed durable power of attorney, which includes
provisions which comply with subdivision (2) regarding
health care decisions who authorizes the providing,
withholding, or withdrawing of life-sustaining treatments
or artificially provided nutrition or hydration in
accordance with the durable power of attorney and pursuant
to this subsection shall not be subject to criminal
prosecution or civil liability for that action.
(9) Nothing in this subsection regarding the appointment of
an attorney in fact with respect to health care decisions
shall impair or supersede any legal right or legal
responsibility which any person may have, under case law,
common law, or statutory law to effect the provision,
withholding, or withdrawal of life-sustaining treatment or
artificially provided nutrition and hydration in any lawful
manner. In such respect, the provisions of this
subsection are cumulative.
(10) No physician or other health care provider, and no
health care service plan, health maintenance organization,
insurer issuing disability or life or health insurance,
self-insured employee welfare benefit plan, nonprofit
medical service corporation, or mutual nonprofit hospital
or hospital service corporation shall require any person to
execute a durable power of attorney with respect to health
care decisions as a condition for being insured for, or
receiving, health care services.
(11) Nothing in this subsection regarding the appointment
of an attorney in fact with respect to health care
decisions shall impair or supersede the jurisdiction of the
circuit court in the county where a patient is undergoing
treatment to determine whether life-sustaining treatment or
artificially provided nutrition and hydration shall be
withheld or withdrawn in circumstances not governed by this
subsection.
(12) This subsection shall create no presumption concerning
the intention of an individual, who has not executed a
durable power of attorney regarding health care decisions,
or any other advance directive for health care, or if the
durable power of attorney, or advance directive for health
care is executed, the durable power of attorney or advance
directive for health care is ambiguous or silent as to a
particular health care matter, to consent to the use or
withdrawing or withholding of life-sustaining treatment or
artificially provided nutrition and hydration. The terms
"person" and "advance directive for health care" shall have
the meaning as under Sections 22-8A-1, et seq.
(13) A durable power of attorney executed in another state
in compliance with the law of that state or of this state
is valid for purposes of this subsection, but this
subsection does not authorize the administration,
withholding, or withdrawal of health care otherwise
prohibited by the laws of this state.
(14) Any durable power of attorney regarding health care
decisions made prior to May 8, 1997, shall be given effect
provided that the durable power of attorney was legally
effective when written and artificially provided nutrition
and hydration shall not be withdrawn pursuant to the
durable power of attorney unless specifically authorized
herein.