- For Attorneys
A power of attorney is an instrument containing an authorization for one to act as the agent of the principal that terminates at some point in the future either by its terms or by operation of law such as death of the principal or agent. (The person making the power of attorney appointment is called the principal, and the person appointed is usually called an attorney-in-fact or agent). The validity of a power of attorney in another state depends on the law and/or procedures of the second state. In order for a power of attorney document to be valid, the principal must be mentally competent when he or she signs it. This means that the principal must understand the powers that he/she are granting to the agent and the implications of having someone else make decisions for the principal. If the principal is mentally competent and understands the powers that he or she is granting and the implications of the same, it does not matter if he or she can sign his or her signature as long as he or she can make a mark over his or her printed name. When individuals create a power of attorney, they can name two or more people to serve as agents at the same time. They can also name an alternate agent to assume powers under the power of attorney under certain circumstances, such as the death or incapacity of the first agent.
Unless a power of attorney specifically says otherwise, an agent's authority ends if the principal becomes mentally incapacitated. A durable power of attorney, on the other hand, states explicitly that it is to remain in effect and not be limited by any future mental incapacity of the principal, and the principal's agent can continue to conduct business for the principal if the principal becomes incapacitated. The principal must list the specific powers under the durable power of attorney that are given to the agent and when those powers are to take effect. Durable powers of attorney are intended to address cases where the principal intends the agent to have authority only if the principal becomes incapacitated or where the principal intends for the power of attorney to take effect immediately and to remain in effect regardless of the principal's future disability. The agent and/or a physician may determine whether a principal is capable of making his or her own decisions according to state laws that provide specific procedures for making this determination. Alternatively, a principal can include in his or her durable power of attorney other effective dates or other factors for determining whether he or she can make his or her own decisions. Like all powers of attorney, a durable power of attorney ends or ceases to carry authority upon the death of the principal. There are two general types of durable powers of attorney: a durable power of attorney for finances, and a durable power of attorney for health care. Depending on the terms of the document, the durable power of attorney for finances allows the agent to serve the interests of the principal in financial matters before, during, or after the agent becomes incapacitated. The durable power of attorney for health care authorizes the agent to make medical decisions for the principal if the principal cannot otherwise make those decisions.
Laws on amendments to a power of attorney vary by state and power of attorney. For example, in some states, a durable power of attorney may be changed only by executing a new durable power of attorney or executing an amendment with the same formalities as the original power of attorney. A power of attorney can generally be revoked by the principal at any time, as long as he or she is competent. To revoke a power of attorney, the principal must do so in writing. The revocation of a power of attorney is used to terminate the authority granted to the principal's attorney-in-fact/agent. This means that the attorney-in-fact/agent no longer has the authorization to act on behalf of the principal. An agent or attorney-in-fact may also resign by giving notice to the principal and recording the notice wherever the power of attorney was recorded (such as the county land records).
A guardianship or conservatorship is a legal relationship between a competent adult or "guardian" and a person who is no longer able to make his own responsible decisions or "ward." The legal guardianship is appointed by a court and can be authorized to make legal, financial, and health care decisions for the ward. A conservator is a person or entity appointed by a court to manage the property, daily affairs, and financial affairs of another person, usually someone who is incompetent by reason of a physical or mental infirmity or age. An open hearing is held before the appointment is made. The conservator is required to make regular accountings which must be approved by the court. The conservator may be removed by order of the court if no longer needed, upon the petition of the conservatee or relatives, or for failure to perform his/her duties. Once a court has jurisdiction over a conservatorship that jurisdiction continues until it is terminated by the court. If the ward moves to another state, the conservatorship is not automatically terminated. However, it is often recommended when a ward moves to another state that a guardianship or conservatorship be established in the other state to ensure that the guardian's or conservator's authority will be recognized by the other state. Also, it is difficult for a court to supervise such a guardianship or conservatorship when the fiduciary lives outside the state.
If your step-father is incompetent, and the power of attorney has terminated due to his incapacity (if it is not a durable power of attorney), or if you wish to resign as the agent, you might consider having a guardian or conservator appointed on his behalf.