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POWERS OF ATTORNEY FOR EVERYONE

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LAWYER AT LARGE, LLC.

MICHAEL LYNN GABRIEL

ATTORNEY AT LAW

(BS., JD., M.S.M., DIP. (TAX), LLM (TAX))


TABLE OF CONTENTS


INTRODUCTION

This book deals with powers of attorney and is designed to be informative and easy to use. What a power of attorney is, the reasons for a person to create a power of attorney and the types best suited for each special need are discussed in a clear and concise manner. In particular, the various types of powers of attorney, general, limited, and durable, are each treated separately. The similarities and differences between the various powers of attorney are explained. Specific forms for any type of power of attorney the reader may wish to create. This book is just one of a series that have been specifically written to serve as a tool for the reader to use to understand and appreciate his rights and the procedures employed in the law. The total series are a compendium of practical law as practiced in all 50 states and the District of Columbia are on such topics of:

  1. ESTATE PLANNING, a 2-volume set
  2. FINANCIAL PLANNING, a 2-volume set
  3. BANKRUPTCY CHAPTER 7
  4. BANKRUPTCY CHAPTER 13
  5. SMALL CLAIMS COURT
  6. PARTNERSHIPS
  7. LIMITED LIABILITY COMPANIES
  8. INCORPORATING A SMALL BUSINESS
  9. NONPROFIT CORPORATIONS
  10. POWERS OF ATTORNEY
  11. NORTH AMERICAN FREE TRADE AGREEMENT (NAFTA)

Each of these books is different from other legal books on the market. The compendium does not dwell excessively upon the law; each volume quickly moves into basics and practice. These are practical books that tell the reader how to accomplish the desired results and provide detailed forms, examples and instructions. The volumes offer user-friendly, complete, practical knowledge in the discipline of the title of the book.

POINT TO BEAR IN MIND: A frequent comment concerning this series is that important information is mentioned several times throughout this book. This is not poor drafting but is intentional. It is not foreseen that these books will be read as novels, that is from beginning to end. Many readers will skip chapters to focus directly on the problems at hand. Therefore to assure that important information is not missed it is often repeated. Stating the material once in the book protected the author from any criticism that the book is incomplete. Stating it more often helps protects the reader from missing that information.


CHAPTER 1

COMMON QUESTIONS REGARDING POWERS OF ATTORNEY

This chapter answers the questions and concerns most commonly asked by persons while attempting to decide whether or not to grant a power of attorney to another person. Powers of Attorney are important legal documents which effect the person creating them on a personal and financial basis. A power of attorney should not be granted indiscriminately. It should be exercised with concern for the particular needs and desires of the person granting the power of attorney.

1. WHAT IS A POWER OF ATTORNEY?

A power of attorney is a written document wherein a person, called the "Principal," gives to another person, called the "Attorney-in-Fact," the authority to act on the principal's behalf. There are four types of powers of attorney. There is a general power of attorney by which a principal gives the attorney in fact all authority unconditionally to act on his behalf. There is a limited power of attorney, sometimes called a "special power of attorney," by which a principal gives the attorney in fact only limited authority to accomplish a certain purpose or transaction on the principal's behalf. There is a "durable power of attorney" for either a general or special financial purpose that will continue or activate upon the principal's mental incapacity. There is a "durable power of attorney for health care" that gives the right to the attorney in fact to make health care decisions for the principal if the principal is unable to do so.

2. HOW IS A POWER OF ATTORNEY CREATED?

In order for a power of attorney to be valid, it must be in writing and have been executed in accordance with applicable state law. As such, the laws of all states require a valid power of attorney to have been executed by a principal having the legal capacity to do so and in accordance with the state required formalities for a power of attorney.

Legal capacity to make a power of attorney means simply that the person is an adult, is aware that he is making a power of attorney and is not suffering from some mental aberration that renders his conduct questionable.

A person who has been adjudged incompetent by a court generally will not, under the laws of most states such as New York and California, be able legally to execute a power of attorney. A minority of states, such as Georgia, hold a power of attorney executed by a mentally incompetent is not automatically void but rather is voidable by the court.

3. WILL A POWER OF ATTORNEY CONTINUE AFTER ITS PURPOSE HAS BEEN SATISFIED?

If a principal is granted a power of attorney to only accomplish one particular purpose or do one particular thing, the power of attorney terminates when that special purpose or act is accomplished. When the specific purpose for which the power of attorney was granted is accomplished, the termination of the power of attorney occurs regardless of whether the termination date in the power of attorney document has expired. To have such an automatic and self-executing termination of the power of attorney, the power of attorney instrument must state both the purposes of the power of attorney and what it will take to accomplish them.

Courts have repeatedly recognized that the power of attorney ends when there is no longer any act remaining to be done to accomplish the purpose for which it was granted. Example: A power of attorney to sell a house. Once the house is sold, the power lapses. The attorney in fact would not have authority to do anything else even though the expiration date in the power of attorney has not arrived.

4. IF THE POWER OF ATTORNEY DOCUMENT IS LOST WILL THE POWER OF ATTORNEY AUTOMATICALLY TERMINATE?

A common concern is often voiced as to what would happen if the power of attorney document is lost or accidentally destroyed and cannot be produced. Under general probate law, for example, if a Will is lost or destroyed, it is presumed to have been revoked.

That presumption does not apply to powers of attorney. A power of attorney is not created by virtue of the document but rather by the will and desire of the principal. Thus, the mere loss of the document does not cause its termination or lapse. In such an event, it might become difficult to convince third parties that a power of attorney was originally granted but that is a practical matter. From a legal standpoint, the power of attorney still remains legal, valid and in force even though the original instrument cannot be produced.

5. HOW DOES THE PRINCIPAL'S BANKRUPTCY AFFECT THE POWER OF ATTORNEY?

Once a principal files for bankruptcy relief, an attorney in fact is automatically divested of any authority to deal in any way with property that is under the jurisdiction of the bankruptcy court. This loss of authority occurs automatically and without the necessity of notice. Mere insolvency of the principal will not terminate the power of attorney provided the principal's property has not been seized or attached pursuant to the law. Likewise, the appointment of a state receiver for the principal's property does not terminate the power of attorney even though the receiver may limit full exercise of it.

6. CAN TWO OR MORE PERSONS MAKE JOINT POWERS OF ATTORNEY?

It is possible for two or more persons to execute a joint power of attorney. Such powers of attorney are most often utilized by married couples. A joint power of attorney basically gives each party the right to act on the other party's behalf to the extent covered in the power of attorney document. A joint power of attorney can either be limited or general in scope. For example, when the sale of real property is involved, the effect of a joint power of attorney is construed as authorization for the Attorney in Fact to convey the interest of either or both of the principals in the property. For a married couple, a joint power of attorney is construed as authorizing either attorney in fact (spouse) to sell all of the property (both spouses' interest).

Joint powers of attorney are executed the same as a single power of attorney. The biggest drawback with a joint power of attorney is that if one principal subsequently wishes to change the power of attorney, it would, in most states, invalidate the other principal's [power of attorney at the same time. Given the ease with which powers of attorney can be created and tailored made to each individual, there is not much justification for doing a joint power of attorney.

7. HOW LONG DOES A POWER OF ATTORNEY LAST?

A general power of attorney lapses (becomes invalid) at the moment the principal dies or becomes mentally incompetent. At the moment when it is needed most, a general power of attorney becomes invalid and the right of the attorney in fact to act for the principal ceases, lapses and terminates. In all states except Louisiana and Pennsylvania, a general or limited power of attorney lapses immediately upon the principal becoming mentally incompetent. Upon this automatic termination of general and limited powers of attorney, the court appoints a conservator or guardian for both the person and his estate. Allowing a general power of attorney to remain in effect would impair the ability of the conservator or guardian to manage the affairs of the estate and provide for the incompetent principal. Most states have adopted the Uniform Durable Power of Attorney Act, the Uniform Probate Code or have enacted their own legislation to permit durable powers of attorney that remain in force throughout the principal's period of mental incapacity.

When a power of attorney states a specific termination date, that date will control the termination. The right of the attorney in fact to act for the principal will lapse on the expiration of the stated date. In the case of durable powers for health care (discussed in Chapter 4), many states limit by statute the period of time in which an attorney in fact can make health care decisions for a principal (in California it is seven years).

8. ARE ACTS DONE BY THE ATTORNEY IN FACT AFTER THE DEATH OF PRINCIPAL WITHOUT KNOWLEDGE OF THE DEATH STILL VALID?

In most states, acts by an attorney in fact that are undertaken on the principal's behalf without knowledge of the principal's death are valid and binding on the principal's estate. An affidavit executed by the attorney in fact stating that he did not have actual knowledge of its termination by revocation or by death or incapacity at the time of exercise 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 also recordable.

9. WHAT IS A GENERAL POWER OF ATTORNEY?

A general power of attorney is an express grant of authority to the attorney in fact to do anything for the principal. This is the type of power of attorney most often given by a parent to a child or a brother to another brother or sister. This is the greatest expression of trust that a person may show. The holder of a general power of attorney vests the attorney in fact will full and complete authority to transact any and all business for the principal. The authority conferred on the attorney in fact is, by implication, as total and as complete as necessary to perform every type of business for the principal.

Whatever an attorney in fact does under a general power of attorney, he is still doing it for the principal. A general power of attorney does not give the attorney in fact the right or authority to do acts for his own benefit but remains limited to performing acts for the use and benefit of the principal.

10. HOW IS A POWER OF ATTORNEY CONSTRUED?

The grant of authority to the attorney in fact to act for the principal is construed from the language contained in the power of attorney. In a situation where the scope and grant of authority is unclear, the court will determine the meaning of an ambiguity in accordance with the intent of the parties at the time of the granting of the power. The authority that the power of attorney bestows upon the attorney in fact is not to be extended by implication beyond those powers specified therein unless absolutely necessary to complete those powers that are specifically stated. The scope and breadth of any grant of authority will be strictly construed. This rule of strict construction requires that any act by an attorney in fact must be one that is specifically authorized to be done. A principal is not bound by any act in excess of the authority granted the attorney in fact by the power of attorney.

11. WHAT IS A LIMITED POWER OF ATTORNEY?

A limited power of attorney is also called a special power of attorney. This power of attorney is so named to reflect the limited scope of authority that is granted and the limited purpose sought to be accomplished. The only authority granted to the attorney in fact is that needed to accomplish the specific purpose stated in the power of attorney instrument. A specific power to do something for a principal is called an "express grant of authority." Such a specific grant of authority is limited only by the stated purpose of the power of attorney. The rule of construction is that general grants of authority are usually limited and controlled by the stated terms and purposes of the power of attorney. Where a power of attorney bestows authority to accomplish specific goals for the principal and the attorney exercises general grants of authority, the courts will limit the grants of authority to acts needed to accomplish the specific goals of the power of attorney.

12. HOW IS THE AUTHORITY CONSTRUED OF AN ATTORNEY IN FACT WITH LIMITED POWER OF ATTORNEY?

The authority granted by a limited power of attorney cannot be extended to accomplish purposes not stated in the power of attorney. When a power of attorney contains both general and specific grants of authority, the general grants carry no greater powers than the specific grants of authority. While the grants of authority under a power of attorney will be strictly construed, certain authority may nevertheless be implied to perform the express purpose of the power of attorney. Courts interpreting a power of attorney attempt to clarify and reconcile competing clauses to achieve the stated purpose of the power of attorney. To determine if a particular act undertaken by the attorney in fact is authorized, the court looks at the type of act in question. The stated authorities in the power of attorney will be considered together rather than separately.

As with a general power of attorney, a limited power of attorney lapses upon the death or mental incapacity of the principal. A limited power of attorney also terminates automatically when the purpose for which it was issued has been satisfied. For example, a limited power of attorney is granted by father to son giving the son the right to sell father's house. Once the house is sold, the power of attorney terminates. The son would not have the power to sell the next house his father may purchase.

13. WHAT ARE DURABLE POWERS OF ATTORNEY?

A durable power of attorney is a specialized type of power of attorney that remains in full force and effect during any period of mental incapacity of the principal. A durable power of attorney has the effect of eliminating the need for a voluntary conservatorship or a guardianship of the principal and the principal's estate. A durable power of attorney can give the attorney in fact the power to make decisions of any type or just those specific decisions relating to health care if the principal is unable to do so.

14. WHAT ARE STATUTORY FORMS OF DURABLE POWERS OF ATTORNEY?

Many states have approved statutory forms for durable powers of attorney. The use of these forms is not mandatory as long as the form actually used contains the same basic information. The use of a statutory form is recommended over a nonstatutory form because there is less chance of a dispute about the meaning and intent of the clauses contained in the forms. Chapter 4 contains the statutory durable powers of attorney for health care forms for all of the states that have adopted one.

In addition, Chapter 4 contains the statutory form for a durable power of attorney for financial affairs that has been adopted by the following states: California, Illinois (the form is a combined health and financial affairs), Minnesota, New Mexico and New York. Most of the states that have adopted their own statutory durable power of attorney for health care form have not created a separate statutory form for a durable power of attorney for health care nor have they created a separate statutory form for a durable power of attorney for financial affairs. Even those states that have adopted a statutory power of attorney for financial care form do not mandate the use of their statutory forms in order to have a valid durable power of attorney. In contrast, most of the state which have statutory forms for durable power of attorney for health care do mandate the use of their forms. Chapter 4 contains a uniform durable power of attorney for financial affairs and a combined uniform durable power of attorney for both health care and financial affairs for use in those states permitting non-statutory forms. The statutory forms for health care are usually available in most business and stationary stores. The cost for statutory forms usually is $2.00 and is the cheapest peace of mind that can be purchased.

15. WHAT IS A DURABLE POWER OF ATTORNEY FOR FINANCIAL AFFAIRS?

A durable power of attorney for financial affairs is exactly what the name states. It is a power of attorney to handle the financial affairs of the principal during the time that he is incompetent. Such a power of attorney is limited only to financial affairs and does not extend to making health care decisions. If a durable power of attorney for financial affairs is limited in scope and a matter arises that is not covered by the power of attorney, a conservatorship or guardianship must be opened to handle it. This, of course, is the very situation for which the durable power of attorney is designed to avoid. One advantage of a durable power of attorney is that it is possible for a principal to give to more authority and power to the attorney in fact than a court would give a guardian or conservator. The reason for this is that the court usually wants to limit the scope of a person authority to act for another without court approval.

It is possible for a Principal to give a power of attorney to more than one attorney in fact. Often, a principal may give one attorney in fact the right to care for the principal's person and the other attorney in fact is given the power to manage the principal's estate. In addition, a principal may give one attorney in fact a limited durable power of attorney whereas the another attorney in fact might have a general durable power of attorney.

16. WHAT IS A SPRINGING POWER OF ATTORNEY?

A durable power of attorney can have a clause in the instrument that states that the power of attorney does not become effective until and unless the principal becomes incompetent. This is a safety feature that prevents the attorney in fact from acting for the principal until it is proven that the principal is incompetent. It is called a "springing power of attorney" because it "springs" into force only when the principal is declared incompetent. The declaration of mental incapacity is usually defined in a clause that requires two or more medical doctors to diagnose the principal as incompetent. A notable disadvantage of a springing durable power of attorney is that there is no one authorized to make valid business and health decisions for the principal during the period of time that the principal is incompetent and before the doctors make the necessary diagnosis.

17. MUST THE ATTORNEY IN FACT RENDER ANNUAL ACCOUNTINGS?

Unless the power of attorney requires the attorney in fact to render annual accountings, it is usually not required. North Carolina is unique. It requires an attorney in fact of financial affairs to file an annual accounting with its court: the principal can waive any required accountings provided he is legally competent.


CHAPTER 2

DISCUSSION ABOUT POWERS OF ATTORNEY BASICS

I. INTRODUCTION

This chapter covers the elements and characteristics that are common to all are general, limited and durable powers of attorney. This chapter introduces the reader to the basic operation of powers of attorney, the duties and responsibilities of the attorney in fact and the effects of the power of attorney on third parties.

The subsequent chapters discuss general and limited powers of attorney, durable powers of attorney for financial purposes and durable powers of attorney for health care. These chapters will address the law that specifically administers these types of powers of attorney.

II. DEFINITION OF A POWER OF ATTORNEY

The simplest definition of a power of attorney is a written authorization given by one person, known as the principal, to another person called an agent or attorney in fact, to perform specified acts on behalf of the principal. Another name for a power of attorney is a "Letter of Attorney" which means the same.

An attorney in fact is not to be confused with an attorney at law. The California case People vs. Malone 232 Cal.App.2d 531 confirmed that difference when it stated that an attorney at law and attorney in fact were different by both definition and custom. A power of attorney does not, the court held, empower an attorney in fact to act as an attorney at law for the principal. To do otherwise, the court reasoned, would be to destroy the State Bar Act and its licensing and quality standards.

The creation of a power of attorney does not prove authority, as between agent and principal; instead it proves the existence of the agency arrangement to third persons with whom the agent will be dealing on the principal's behalf. A power of attorney is by law a specific grant of authority to the attorney in fact to act for the principal within the terms of the power of attorney. It is a grant of authority on which third persons can rely in dealing with the attorney in fact.

III. CREATION OF A POWER OF ATTORNEY

In order of a power of attorney to be valid, it must have been executed in accordance with the applicable state law. All states require that a valid power of attorney be executed by a principal having legal capacity to do so and in accordance with state-required formalities for a power of attorney.

A. LEGAL CAPACITY OF THE PRINCIPAL

By legal capacity, it is meant the person meets the same legal standards as someone creating a will. The definition for legal capacity requires that the person understand the nature, quantity and quality of his affairs, the natural objects of his affection (his family members) and not be affected by any insane delusions affecting these aspects of his life.

Under the common law, a married woman was not permitted to create a power of attorney, even jointly with her husband. The reason behind this prohibition was that, under the common law, the husband was totally responsible for the care and support of the wife. This duty was not assignable or transferrable to anyone if the wife wanted it to be. The view was that since the husband was responsible for all the debts of the wife and the wife should not be able to grant a power to a third party that conceivably could result in a greater liability to the husband. The old common law bar against a married woman creating a power of attorney has been abolished. A married woman can grant a power of attorney to a person other than her husband.

Several states hold that a power of attorney executed by a person judged mentally incompetent is not void but is voidable by a court after an appropriate hearing. A person who has been judged incompetent by a court is still able to execute a legal power of attorney under the laws of most states (such as New York and California). A power of attorney executed by a mental incompetent is not automatically void but is voidable by the court in a minority of states (such as Georgia).

B. STATE FORMALITIES

Most states require no specific form to be followed to create a valid power of attorney provided the general requirements are met. All powers of attorney require:

  1. The document contain language stating that the principal is creating a power of attorney.
  2. An attorney in fact be named. By its very nature a power of attorney intends the attorney in fact to act when the principal is not present. The power of attorney is the sole document of authority for the attorney in fact; it must display enough information to prove its genuineness. The power of attorney must be clear and certain in its grant of authority to the attorney in fact. The scope and authority of the attorney in fact to act on behalf of the principal derives from the language of the power of attorney and must be stated concisely.
  3. The purpose of the power of attorney be stated.
  4. The express powers and authority of the attorney in fact be stated.
  5. If a durable power of attorney is being created, the power of attorney must contain language to that effect.
  6. The power of attorney must be notarized if it is a durable power of attorney.

Common law required a power of attorney to be executed under seal. Until recently, before copy machines, copies were unavailable and the original remained in the hands of the attorney in fact; the potential for fraud always existed. The requirements for having a power of attorney sealed no longer exist. Nearly all states have passed statutes that require powers of attorney that carry the right to sell or convey any interest in real property be notarized to be valid. Moreover, the principal's signature must be notarized as a requirement for recordation. Some states (such as Wyoming) hold that an attorney in fact appointed under an unacknowledged power of attorney (without notarization) is not able to sell or convey the principal's real property, but he can hold and accept property on behalf of the principal.

A notable exception to the fact that most states do not have specific forms for powers of attorney concerns durable powers of attorney for health care. Twenty-six states have adopted statutory forms for durable powers of attorney for health care. In these states durable powers of attorney for health care can be granted by merely executing the state's statutory form. In addition, most of these statutory forms are not mandatory as long as the actual form used is substantially the same. In contrast to durable powers of attorney for health care, no state has mandated statutory forms for financial durable powers of attorney although some suggest optional forms.

IV. CONSTRUCTION AND INTERPRETATION OF A POWER OF ATTORNEY

A. CONSTRUCTION

The grant of authority for the attorney in fact to act for the principal is construed from the language contained in the power of attorney. Where the scope and grant of authority is unclear, the court will determine the meaning of an ambiguity in accordance with the intent of the parties at the time of the granting of the power. The authority the power of attorney gives the attorney in fact is not to be extended by implication beyond those powers specified unless absolutely necessary to complete the productive use of those powers that are specifically stated.

The scope and breadth of any grant of authority will be strictly construed. This rule of strict construction requires that any act by an attorney in fact must be one specifically authorized to be done. A principal is not bound by any act by an attorney in fact that exceeds the authority granted by the power of attorney. For example, the Oregon case Brown vs. Laird 134 Or 150 held that a power to sell property does not carry with it the power to make a gift of the property.

While the grants of authority under a power of attorney will be strictly construed, certain authority may nevertheless be implied to complete the express purpose of the power of attorney. Courts interpreting a power of attorney attempt to clarify and reconcile competing clauses to achieve the stated purpose of the power of attorney. To determine if a particular act of an attorney in fact is authorized by the power of attorney, the court looks at the type of act and the stated authority in the power of attorney and considers them together as well as separately.

The authority granted to an attorney in fact is not always confined to performance of specific actions. This authority is rarely so limited. Yet, the attorney in fact must not exceed his grant of authority, even if it is broad and extensive. While exercising his authority the attorney in fact is permitted to do all things incident and necessarily subordinate to accomplishing the stated purpose of the power of attorney. Powers of attorney are deemed to grant such implied powers as are necessary to complete the designated objectives. Example: The power to sell property carries with it an implied grant of authority to execute a bill of sale for any property that is sold. Courts have held that a power of attorney granting authority to transact business of any kind carries with it the implied power to pay the principal's business debts.

A specific power to do something for a principal is called an 'express grant of authority.' Such a specific grant of authority is limited only by the stated purpose of the power of attorney. The rule of construction is that general grants of authority are usually limited and controlled by the stated terms and purposes of the power of attorney. Where a power of attorney bestows upon the attorney the authority to accomplish specific goals for the principal and general grants of authority are used, the court will limit the grants of authority to acts needed to accomplish the specific goals of the power of attorney. Simply stated the authority granted, regardless how broad the grant, in a power of attorney cannot be extended to accomplish purposes not stated in the power of attorney. When a power of attorney contains both general and specific grants of authority, the general grants carry no greater powers than the specific grants of authority. The United States Supreme Court, Wright vs. Ellison 1 Wall (US) 16 stated that a general power of attorney is restricted as well as enlarged by the original intent of the parties. An express grant to an agent of authority to do any and every act under a power of attorney for the limited purpose of selling a house will not give the attorney in fact the authority to do anything but sell the house. The agent would not be able to sell the principal's stocks and bonds despite the language of the express grant. The legal treatise "Restatement, Agency section 37" holds that the specific authority to do certain acts tends to show that a more general grant of authority is not intended.

The situation in a general power of attorney is different. A general power of attorney vests the attorney in fact with full and complete authority to transact any and all business for the principal. The authority conferred on the attorney in fact is as total and as complete as necessary to perform every type of business for the principal. Whatever an attorney in fact does under a general power of attorney, he is still doing it for the principal. A general power of attorney does not give the attorney in fact the right or authority to do acts for his own benefit but remains limited to performing acts for the use and benefit of the principal.

B. AMBIGUITIES

Ambiguities in the exercise of powers of attorney are strictly construed. Ambiguities may arise either in the language of the power of attorney or in the facts surrounding the exercise of the power. When the language of the power of attorney is ambiguous, courts will interpret the language against the principal. The reason for this interpretation is that the principal created the power of attorney and any ambiguity as to language is always interpreted against the creator of the document. Under the legal treatise "Restatement, Agency section 42," it is stated that where the authority granted is not ambiguous then the power is reasonably interpreted, but it asserts that where an agent's authority is ambiguous, the interpretation by the agent is controlling.

Under "Restatement, Agency section 34," when an ambiguity arises because of facts outside the power of attorney and neither the principal nor the attorney in fact knew of it when the power of attorney was executed, the attorney in fact has the inherent authority to act pursuant to the course of action that he perceives would have been the intent of the principal. Under this rule of construction (followed in a minority of states), the principal bears the responsibility and liability for reasonable mistakes made by the attorney in fact caused by his interpretation of the authority as a result of facts he did not know when the power of attorney was executed.

As stated above, the rules of strict construction and purpose cover the interpretation of a power of attorney. Courts have repeatedly stated the premise that in the absence of ambiguity or incompleteness a power of attorney is governed by the expressed intent of the parties. When there is doubt as to the intent of the parties, parol evidence (which is extrinsic and explanatory evidence) may be used in certain situations. The legal treatise "Restatement, Agency section 44" holds that such parol evidence should be admitted in court to show any special situations of the parties or the property, industry standards, or other facts that have a bearing on the interpretation of the power of attorney.

C. EQUAL DIGNITIES RULE

The "equal dignities rule" is a rule of construction regarding the authority granted in powers of attorney. This rule states that where the law requires a contract to be in writing to be enforceable, the agent's authority to enter the contract must also be in writing to be enforceable. Therefore, for an agent to enter a contract that must be written to be enforceable, the authority for the agent (the attorney in fact) to perform that act must be specifically stated in the power of attorney. Contracts required to be in writing to be enforceable are determined by a state's statute of frauds. Contracts required to be in writing are those for the sale of goods over $500, those relating to an interest in real property, or contracts which require over one year to be performed.

An attorney in fact violates the equal dignities rule by signing a contract required to be in writing without specific authorization in the power of attorney; the principal will not be bound by the contract. The equal dignities rule does not apply where the principal merely authorizes the attorney in fact to sign, pursuant to the direction of the principal, the principal's name to a contract required to be in writing; the act of the attorney in fact does not amount to making a contract.

V. TERM OF A POWER OF ATTORNEY

Normally, a power of attorney will continue in effect for as long as the term stated in the instrument. If there is no expiration date in the power of attorney instrument, the authority to act for the principal will continue until the principal's death or mental incapacity or his revocation of the power of attorney unless limited by statute. The burden of proof that a power of attorney is no longer in effect rests solely with the person who is asserting the claim.

A. LAPSE WITH TIME

Generally, unless a power of attorney contains a time limitation, it will last until it is revoked or terminated or the principal dies. When a power of attorney states a specific termination date, that date will control the termination of the power. When the power of attorney states a specific termination date, the right of the attorney in fact to act for the principal will lapse on the stated date. In the case of durable powers of health care, many states limit by statute the period of time an attorney in fact can make health care decisions for a principal (it is seven years in California). The reason for the statutory limitation on a power of attorney is to prevent from someone acting on behalf of a power of attorney granted many years earlier which the principal may have forgotten about.

The legal treatise, "Restatement", Agency section 105 states that if a principal allows an attorney in fact to act on his behalf after the expiration of the power of attorney, a rebuttable presumption is created that the acts undertaken by the former attorney in fact are ratified.

Ambiguities arise when the power of attorney does not contain an expiration date or is otherwise uncertain on the matter. Most states hold that a power of attorney is effective until it expires or is revoked. Some states have held that powers of attorney without a termination date will be given effect only for a reasonable time which is determined by the circumstances of each individual case. This situation usually arises in a family setting where a parent may have given a child a power of attorney and twenty years later the parties wonder if it is still effective.

B. SATISFACTION OF PURPOSE

In the situation where a power of attorney is granted to accomplish one particular purpose or transaction, the power of attorney terminates upon the accomplishment of that special purpose or transaction. Termination occurs whether or not the termination date in the power of attorney has expired. To have such automatic and self-executing termination of the power of attorney, the power of attorney instrument must be clear and unambiguous in stating what the purposes are and what it will take to accomplish them.

The legal treatise, "Restatement", Agency section 109 holds that the authority of an agency is terminated once the attorney in fact becomes aware of a change in the principal's business (such as the accomplishment of the stated purpose of the power of attorney) from which he should infer that the principal would not consent to further exercise of his authority.

Courts have repeatedly recognized that the power of attorney ends when there is no longer any act required to accomplish the specific purpose of the power of attorney. Example: A power of attorney given to sell a house. Once the house is sold, the power lapses. The attorney in fact would not have the authority to do anything else even though the expiration date in the power of attorney has not arrived.

C. LOSS OF THE POWER OF ATTORNEY DOCUMENT

Occasionally the power of attorney document is lost or destroyed. The question then arises as to whether or not the power of attorney is terminated. If it is a will that is lost or destroyed it is presumed to have been revoked. That presumption, however, does not apply to powers of attorney. A power of attorney is not created by virtue of the document; it is created by the will and desire of the principal.

As such, the mere loss of the power of attorney document does not cause it to terminate. It may be difficult to convince third parties that a power of attorney was originally granted, but that is a practical matter. The power of attorney still remains legal, valid and in force even though the original instrument cannot be produced.

D. BANKRUPTCY OF THE PRINCIPAL

Once a principal files for bankruptcy relief, an attorney in fact is automatically divested of any authority to deal with property that is under the jurisdiction of the bankruptcy court. This loss of authority occurs automatically and without the necessity of giving notice.

"Restatement", Agency section 114 asserts that the principal's bankruptcy or substantial impairment of his assets of which the agent may have notice should operate as a termination of the attorney in fact's authority to act for his principal as to those assets placed into bankruptcy or otherwise substantially impaired.

Most states hold that the mere insolvency of the principal will not terminate the power of attorney provided the principal's property has not been seized pursuant to the law. It has been held that the appointment of a state receiver for the principal's property does not in itself terminate the power of attorney even though it is a limited power of attorney.

E. REVOCATION OF A POWER OF ATTORNEY

Just as a legally competent principal can create a power of attorney, he can revoke it at any time. The only requirement is the principal be legally competent at the time of the revocation. The effect of the principal's legal competency regarding revocation is quite interesting. Once the principal becomes mentally incompetent (in most states with the exceptions of Louisiana and Pennsylvania), a general or limited power of attorney will immediately terminate. The subsequent mental incapacity of the principal will not affect a durable power (which continues in effect during the period of the principal's mental incapacity).

An effective revocation requires that the principal give notification (preferably written) to the attorney in fact that the power of attorney is terminated on a certain date. In the termination notice, the principal should demand that any power of attorney assets held by the attorney in fact be returned to the principal by that date. The principal should attach a copy of the written termination to the power of attorney document. If the principal has recorded the power of attorney, the revocation must also be recorded to give constructive notice of the revocation to the world.


GENERAL AND LIMITED (SPECIAL) POWERS OF ATTORNEY

I. INTRODUCTION

There are four types of powers of attorney. There is a general power of attorney by which a principal gives the attorney in fact all the authority in the world to act on his behalf. There is a limited, sometimes called a special, power of attorney in which a principal gives the attorney in fact limited authority to accomplish a certain purpose or transaction on the principal's behalf. There is a durable power of attorney for either a general or special financial purpose that will continue or activate upon the principal's mental incapacity. There is a durable power of health care which gives the right to the attorney in fact to make health care decisions for the principal in the event that the principal is unable to do so.

This chapter deals just with general and limited powers of attorney. Chapter 4 will deal exclusively with durable powers of attorney. The purpose and use of general and limited powers of attorney will be discussed in this chapter. Included in this chapter are the forms for general and limited powers of attorney that can be used anywhere in the United States.

II. GENERAL POWERS OF ATTORNEY

A general power of attorney is an express grant of authority to the attorney in fact to do anything for the principal. This is the type of power of attorney most often given by a parent to a child or a brother to another brother or sister. This is the greatest expression of trust that a person may show. The holder of a general power of attorney, as long as it is valid, has total power and control over the assets of the principal.

The reason behind the creation of a power of attorney is not to prove the authority between the agent (attorney in fact) and principal but to prove the existence of the agency arrangement to third persons with whom the agent will be dealing on the principal's behalf. A power of attorney is by law a specific grant of authority to the attorney in fact to act for the principal within the terms of the power of attorney on which third persons can rely in dealing with the attorney in fact.

The grant of authority to the attorney in fact to act for the principal is construed from the language contained in the power of attorney. In a situation where it is unclear as to the scope and grant of authority, the court will determine the meaning of an ambiguity in accordance with the intent of the parties at the time of the granting of the power. The authority that the power of attorney bestows on the attorney in fact is not to be extended by implication beyond those powers that are specifically stated. The scope and breadth of any grant of authority will be strictly construed. This rule of strict construction requires that any act by an attorney in fact must be one that is specifically authorized to be done. A principal is not bound by any act of an attorney in fact in excess of the authority granted under the power of attorney.

A general power of attorney vests the attorney in fact with full and complete authority to transact any and all business for the principal. The authority conferred on the attorney in fact is as total and as complete as necessary to perform every type of business for the principal.

Whatever an attorney in fact does under a general power of attorney, he is doing it for the principal. A general power of attorney does not give the attorney in fact the right or authority to do acts for his own benefit; he remains limited to performing acts for the use and benefit of the principal.

III. USE OF GENERAL POWER OF ATTORNEY RATHER THAN A DURABLE POWER OF ATTORNEY

Except for Louisiana and Pennsylvania a general power of attorney automatically terminates once the principal becomes mentally incompetent. A durable power of attorney for financial affairs will continue in effect during the principal's period of mental incapacity. Bearing this difference between general and durable powers of attorney in mind, some principals may decide to use a general power of attorney rather that a durable power of attorney for one or both of the following reasons:

  1. The principal might want court supervision of his estate if he becomes incompetent. In the absence of a durable power of attorney, once a person becomes incompetent a guardianship or conservatorship over that person's property must be opened to have someone legally authorized to manage that person's estate. Such a proceeding is expensive, and the actions of the person so appointed by the court remain under court supervision. Some people might feel more secure with their estate in the hands of the court.
  2. A springing power of attorney might have been granted to someone else. A springing power of attorney is one that takes effect once the principal becomes incompetent. The general power of attorney lapses, and the durable power of attorney for financial affairs that was granted to the other party take effect.

IV. TERM OF A POWER OF ATTORNEY

Normally, a power of attorney will continue in effect for the term stated in the instrument. In the absence of an expiration date in the power of attorney instrument, the authority of the attorney in fact to act for the principal will continue until the death of the principal, the mental incapacity of the principal or the revocation of the power of attorney by the principal unless limited by a state statute. The burden of proving that a power of attorney is no longer in effect rests solely with the person who is asserting the power of attorney is no longer in effect.

A. LAPSE WITH TIME

Unless a power of attorney contains a time limitation it will last until it is revoked or terminated or the principal dies. When a power of attorney states a specific termination date, that date will control the termination of the power. Upon the arrival of the stated date, the right of the attorney in fact to act for the principal will lapse. In the case of durable powers of health care (discussed in Chapter 4), many states limit by statute the period of time that an attorney in fact can make health care decisions for a principal (in California it is seven years).

The legal treatise "Restatement, Agency section 105" states that when a principal continues to allow an attorney in fact to act on his behalf after the expiration of the power of attorney, a rebuttable presumption is created that the acts undertaken by the former attorney in fact are ratified.

B. MENTAL INCAPACITY OF PRINCIPAL

The general rule followed by nearly all states is that a general or limited power of attorney lapses immediately upon the principal becoming mentally incompetent. The two exceptions to the general rule are in Louisiana and Pennsylvania; they hold that such general or limited powers of attorney continue in effect unless the power of attorney states otherwise. Traditionally under the laws of most states when a person became incompetent the court would appoint a conservator or guardian for both the person and his estate. Allowing a general power of attorney to remain in effect would interfere and impair the ability of the conservator or guardian to manage the affairs of the estate and provide for the incompetent principal.

Within the last 15 years, all of the states have come to realize that it is not always necessary to require a conservator or guardian to be appointed for an incompetent if the person has taken care to prepare for this eventuality. These states have either the Uniform Durable Power of Attorney Act or the Uniform Probate Code. Each of these acts permits a person to grant an attorney in fact the power of attorney to act on the principal's behalf, including the making of health care decisions, after the principal has become mentally incompetent.

V. REVOCATION OF A POWER OF ATTORNEY

Just as a legally competent principal can create a power of attorney, he can at any time revoke it. The only requirement is that the principal be legally competent at the time of the revocation. The effect of the principal's legal competency on revocation is quite interesting. Once the principal becomes mentally incompetent in most states with the (except Louisiana and Pennsylvania), a general or limited power of attorney immediately terminates. The subsequent mental incapacity of the principal will not affect a durable power; it continues in effect during the period of the principal's mental incapacity.

An effective revocation requires that the principal give notification (preferably written) to the attorney in fact that the power of attorney terminates on a certain date. In the revocation notice, the principal should demand that any power of attorney assets held by the attorney in fact be returned to the principal by the date of revocation. The principal should attach a copy of the written revocation to the power of attorney document. If the principal has recorded the power of attorney, then the revocation of the power of attorney must also be recorded to give constructive notice of the revocation to the world.

Following is a general power of attorney specifically granting the attorney in fact the power to do virtually anything for the principal. If less than a full general power of attorney is being granted then a limited power of attorney should be utilized. A form for a limited power of attorney follows the next section. Usually, a power of attorney need not be recorded. Sometimes, however, state law requires recordation when certain powers, usually the authorization to sell land, is granted.


RECORDING REQUESTED BY

WHEN RECORDED MAIL TO

___________________________________________________________________________________ SPACE ABOVE LINE FOR RECORDER'S USE

GENERAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that I, ________________________________________residing at ___________________________________do declare this to be a GENERAL POWER OF ATTORNEY.

I hereby revoke all prior powers of attorney regardless of the type and to whom they may have been given.

I hereby nominate, constitute and appoint _______________________________ whose address and telephone number is:_________________________________________________________________________________ ______________________________________________________________________________________________________________________________________________________________________________ as my true and lawful attorney in fact, for me and in my name, place and stead, and for my use and benefit, to exercise the following powers:

(1) Subject to any limitations in this document, I hereby grant to my agents full power and authority to act for me and in my name, in any way which I myself could act, with respect to the following matters to the extent that I am permitted to act through an agent:

(a) Real estate transactions.

(b) Tangible personal property transactions.

(c) Bond, share, and commodity transactions.

(d) Financial institution transactions.

(f) Insurance transactions.

(g) Retirement plan transactions.

(h) Estate transactions.

(i) Claims and litigations.

(j) Tax matters.

(k) Personal relationships and affairs.

(l) Benefits from military service.

(m) Records, reports and statements.

(n) Full and unqualified authority to my agents to delegate any and all of the foregoing powers to any person or persons whom my agents shall select.

(2) To ask, demand, sue for, recover, collect, and receive such sums of money, debts, dues, accounts, legacies, bequests, interest, dividends, annuities and demands whatsoever as are now or shall hereafter become due and payable or belonging to me and have, use and take by all lawful ways and means in my name or otherwise and to compromise and agree to acquittances or other sufficient discharges for the same.


VI. LIMITED POWER OF ATTORNEY

A limited power of attorney is also called a "special power of attorney." The name reflects the limited scope of authority that is granted along with the limited purpose sought to be accomplished. The only authority granted to an attorney in fact is that needed to accomplish the specific designated purpose in the power of attorney instrument. A specific power to do something for a principal is called to as an "express grant of authority." A specific grant of authority is limited and controlled by the stated terms and purposes of the power of attorney.

The rule of construction is that general grants of authority are limited and controlled by the stated terms and purposes of the power of attorney. If a power of attorney grants the attorney the authority to accomplish specific goals for the principal and general grants of authority are used, the courts will limit the grants of authority to acts needed to accomplish the specific goals of the power of attorney. When a power of attorney contains both general and specific objectives, each objective is impliedly granted only the authority needed to complete it. The legal treatise "Restatement, Agency section 37" holds that the specific authority to do certain acts tends to show that a more general grant of authority is not intended.

While the grants of authority in a power of attorney will be strictly construed, certain authority may nevertheless be implied to complete the express purpose of the power of attorney. Courts when interpreting a power of attorney attempt to clarify and reconcile competing clauses to achieve the stated purpose of the power of attorney. In determining whether a particular act undertaken by an attorney in fact is authorized by the power of attorney, the court looks as the type of act in question, the stated authority in the power of attorney and will consider them together rather than separately.

The authority granted to an attorney in fact is not always confined to performance or specific actions. The authority is rarely so limited. When exercising his authority the attorney in fact may not exceed his grant of authority. While exercising his authority powers, the attorney in fact is permitted to do all incident and necessary subordinate acts to accomplish the stated purpose of the power of attorney. Powers of attorney are deemed to grant implied powers necessary to complete expressed grants of authority. The power to sell property carries with it an implied grant of authority to execute a bill of sale for any property that is sold. Courts have held that where a power of attorney granted authority to transact business of any kind it also carried with it the implied power to pay the principal's business debts.

As with a general power of attorney, a limited power of attorney lapses upon the death or mental incapacity of the principal. The general rule followed by nearly all states is that a general or limited power of attorney lapses immediately upon the principal becoming mentally incompetent. The two exceptions to the general rule are Louisiana and Pennsylvania; both hold that such general or limited powers of attorney continue in effect unless the power of attorney states otherwise. Traditionally under the laws of most states the court appoints a conservator or guardian for both the person and his estate when a person becomes incompetent. Allowing a general power of attorney to remain in effect would impair the ability of the conservator or guardian to manage the affairs of the estate and provide for the incompetent principal. A limited power of attorney also terminates automatically when the purpose for which it was issued has been satisfied. Example: A limited power of attorney is granted by a father to a son giving the son the right to sell the father's house. Once the house is sold, the power of attorney terminates. The son does not have the power to sell the next house his father may purchase.

Following immediately is the form for a limited power of attorney that is acceptable throughout the United States. Usually, a power of attorney need not be recorded. Sometimes, however, state law requires recordation when certain powers, usually the authorization to sell land, is granted.


RECORDING REQUESTED BY

WHEN RECORDED MAIL TO

_________________________________________________________________________________ Space above the line is for Recorder's use

LIMITED (SPECIAL) POWER OF ATTORNEY

I, _________________________________________of ___________________________, CITY_______________________ COUNTY____________________ STATE _________________ hereby appoints______________________________ of __________________________________, CITY _______________________ COUNTY____________________ STATE _________________ as my SPECIAL ATTORNEY IN FACT to act in my place and stead for the purposes of ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________

I specifically grant to my SPECIAL ATTORNEY IN FACT the authority to do any act and execute any document that is both necessary and proper to accomplish the purposes of this LIMITED POWER OF ATTORNEY, except for the following: _________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________


CHAPTER 4

DURABLE POWERS OF ATTORNEY

I. INTRODUCTION

A general power of attorney is a written document wherein a person called the "principal" gives to another person called the "attorney in fact" the authority to act on the principal's behalf. A general power of attorney lapses and becomes invalid at the moment the principal becomes incompetent. At the time it is needed most a general power of attorney becomes invalid and the right of the attorney in fact to act for the principal ceases, lapses, and terminates. This has always been the criticism of a general power of attorney.

To address this situation most states have adopted the Uniform Durable Power of Attorney Act or the Uniform Probate Code or have enacted their own legislation to permit durable powers of attorney.

A. UNIFORM DURABLE POWER OF ATTORNEY ACT

The Uniform Durable Power of Attorney Act was adopted by the following jurisdictions:

ALABAMA CALIFORNIA DIST. OF COLUMBIA DELAWARE

IDAHO INDIANA KANSAS MISSOURI

MONTANA MASSACHUSETTS NEBRASKA N. DAKOTA

PENNSYLVANIA TENNESSEE SOUTH CAROLINA VERMONT

VIRGIN ISLANDS WEST VIRGINIA WISCONSIN

The following is the Uniform Durable Power of Attorney Act as adopted by California. This is basically the same form of the Act that was adopted by the other states. It is stated here for reference purposes.

UNIFORM DURABLE POWER OF ATTORNEY ACT IN CALIFORNIA

(the form of the California act is very similar, if not identical, to the Uniform Acts adopted in other states. All references are to the Civil Code of California.)

Section 2400. Durable Power of Attorney Defined

A durable power of attorney is a power of attorney by which a principal designates another his attorney in fact in writing and the writing contains the words "This power of attorney shall not be affected by subsequent incapacity of the principal," or "This power of attorney shall become effective upon the 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 incapacity.

Section 2400.5. Proxy by Attorney in Fact Is Not a Durable Power of Attorney

Where a durable power of attorney gives an attorney in fact the power to exercise voting rights, a proxy given by the attorney in fact to another to exercise the voting rights is subject to all the provisions of law applicable to such proxy and is not a usable power of attorney subject to this Article.

Section 2401. Acts of Attorney in Fact Binding on Principal and Successors in Interest.

All acts done by the attorney in fact pursuant to a durable power of attorney during any period of incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his successors in interest as if the principal were competent.

Section 2402. Prior Nomination or Subsequent Appointment of Guardian, Conservator, or Other Fiduciaries.

(a) If, following execution of a durable power of attorney, a court of the principal's domicile appoints a conservator of the estate, or other fiduciary charged with the management of all of the principal's property or all of his property except specified exclusions, the attorney in fact is accountable to the fiduciary as well as the principal. The fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if he were not incapacitated, but if a conservator is appointed by a court of this state, the conservator can revoke or amend the power of attorney only if the court in which the conservatorship is pending has first made an order authorizing or requiring the fiduciary to revoke or amend the durable power of attorney to the fact to make health care decisions, as defined in Section 2430 for the principal.

(b) A principal may nominate, by a durable power of attorney, a conservator of the person or the estate of both, or a guardian of the person or estate or both, for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced. If the protective proceedings are conservatorship proceedings in this state, the nomination shall have the effect provided in Section 1810 of the Probate Code, whether or not such writing is a durable power of attorney.

Section 2403. Effect of Death or Incapacity of Principal - All Powers of Attorney, Durable or Otherwise.

(a) The death of a principal who executed a written power of attorney, durable or otherwise, does not revoke or terminate the agency as to the attorney in fact or other persons who, without actual knowledge of the death of the principal, act in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds successors in interest of the principal.

(b) The incapacity of a principal who has previously executed a written power of attorney that is not a durable power of attorney does not revoke or terminate the agency as to the attorney in fact or other persons who, without actual knowledge of the incapacity of the principal, act in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his successors in interest.

Section 2404. Acts of Attorney in Fact in Good Faith Reliance on Power-Affidavit Showing Lack of Actual Knowledge as Conclusive Proof of Nonrevocation or Nontermination.

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 did not have at the time of the exercise of the power actual knowledge of the termination of the power by revocation or by the principal's death or incapacity 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. This section does not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event or other than express revocation or a change in the principal's capacity.

Section 2405. Application and Construction of Act to Effectuate Uniformity.

This Article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this Article among states enacting it.

Section 2406. Title.

This Article may be cited as the Uniform Durable Power of Attorney Act.

Section 2407. Provisions Severable on Invalidity.

If any provision of this Article or its application to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of the Article which can be given effect without the invalid provision or application, and to this end the provisions of this Article are severable.

B. UNIFORM PROBATE CODE

The Uniform Probate Code has been adopted by the following states:

ALASKA ARIZONA COLORADO CONNECTICUT

HAWAII IOWA KENTUCKY MAINE

MARYLAND MICHIGAN MINNESOTA

NEVADA NEW JERSEY NEW MEXICO

NEW YORK OHIO OREGON

RHODE ISLAND SOUTH DAKOTA UTAH

WASHINGTON WYOMING

Section 5 of the Uniform Probate Code is the pertinent provision that authorizes durable powers of attorney and reads as follows:

POWERS OF ATTORNEY

Section 5-501. When the Power of Attorney is Not Affected by Disability.

Whenever a principal designates another his attorney in fact or agent by a power of attorney in writing and the writing contains the words "This power of attorney shall not be affected by disability of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable by him as provided in the power on behalf of the principal notwithstanding later disability or incapacity of the principal at law or later uncertainty as to whether the principal is dead or alive. All acts done by the attorney in fact or agent pursuant to the power during any period of disability or incompetence or uncertainty as to whether the principal is dead or alive have the same effect and inure to the benefit of and bind the principal or his heirs, devisees and personal representative as if the principal were alive, competent and not disabled. If a conservator thereafter is appointed for the principal, the attorney in fact or agent, during the continuance of the appointment, shall account to the conservator rather than the principal. The conservator has the same power the principal would have had if he were not disabled or incompetent to revoke, suspend, or terminate all or any part of the powers of attorney or agency.

Section 5-502. Other Powers of Attorney Not Revoked Until Notice of Death or Disability.

(a) The death, disability, or incompetence of any principal who has executed a power of attorney in writing other than power described in Section 5-501, does not revoke or terminate the agency as to the attorney in fact, agent or other person who, without actual knowledge of the death, disability, or incompetence of the principal, acts in good faith under the power of attorney or agency. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his heirs, devisees and personal representative.

(b) An affidavit, executed by the attorney in fact or agent stating that he did not have, at the time of doing an act pursuant to the power of attorney, actual knowledge of the revocation or termination of the power of attorney by death, disability or incompetence, is, in the absence of fraud, conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power requires execution and delivery of any instrument which is recordable, the affidavit when authenticated for record is likewise recordable.

(c) This section shall not be construed to alter or affect any provision for revocation or termination contained in the power of attorney.

C. STATUTORY ENACTMENTS

All states have enacted some type of legislation authorizing the use of durable powers of attorney for financial affairs. Most of these states have also created their own statutory forms for durable powers of attorney for health care. These forms, where their use is mandatory or whose requirements significantly differ from the basic form in this book, are included at the end of this chapter. It is recommended that the reader compare his individual state durable power of attorney for health care form to decide whether to use it rather than the basic form contained in this book.

A durable power of attorney is a special type of power of attorney. It contains specific language stating that the principal intends for the power of attorney to remain in full force and effect during any period of mental incapacity that may afflict the principal.

A durable power of attorney has the effect of eliminating and replacing the necessity of a voluntary conservatorship or a guardianship of either or both the Principal and the Principal's estate. A durable power of attorney can also give the attorney in fact the power to make decisions of any type or just specific health care decisions when the principal is unable to do so.

Many states have approved statutory forms for durable powers of attorney. Usually the use of these forms is not mandatory as long as the form actually used contains the same basic information. The use of a statutory form is recommended over a nonstatutory form because there is less chance of a dispute concerning the meaning or intention of clauses contained in the forms. Virtually all states have adopted a durable power of attorney for health care act (sometimes called a medical health proxy or medical directive).

This chapter also contains a basic uniform durable power of attorney for health care form that can be used in those states that have not adopted a statutory form of their own or which do no requirement the use of their statutory form. It is always a good idea to consider the use of the statutory form if the state has one, even if it is not required, so as to limit potential attacks against its validity. Even so, the basic form, in this book, often presents the grant of authority and the Principal's wishes in a clear and more concise fashion that most optional statutory forms.

This chapter also contains the statutory form for a durable power of attorney for financial affairs that has been adopted by the following states: Alaska (the form is a combined form for both financial and health care), California, Connecticut (the form is combined for health and financial affairs), New Mexico (a combined form for both financial and health care). Most of the states that have adopted their own statutory durable power of attorney for health care form have not created a statutory form for a durable power of attorney for financial affairs. Even for those states that have adopted a statutory power of attorney for financial affairs form, the use of the statutory form is not mandatory.

This chapter contains a uniform durable power of attorney for financial affairs. It also contains a combined uniform durable power of attorney for both health care and financial affairs. Statutory forms for health care are available in most business and stationary stores. The cost for a statutory form is around $2.00 and is the cheapest piece of mind that can be purchased.

II. DURABLE POWER OF ATTORNEY FOR FINANCIAL AFFAIRS

In all states except Louisiana and Pennsylvania a general or limited power of attorney lapses immediately on the principal becoming mentally incompetent. Traditionally under state law when a person became incompetent the court appointed a conservator or guardian for both the person and his estate. Allowing a general power of attorney to remain in effect would impair the ability of the conservator or guardian to manage the affairs of the estate and provide for the incompetent principal.

A general power of attorney gives the attorney in fact the authority to act on the principal's behalf and becomes invalid when it is needed the most, at the time the principal becomes incompetent. In order to be a valid durable power of attorney, the instrument must contain specific language stating the intent of the principal that the power of attorney will continue during the period of the principal's mental incapacity.

A durable power of attorney for financial affairs is exactly what the name states. It is a power of attorney to handle the financial affairs of the principal during the time that he is incompetent. This power of attorney is limited only to financial affairs and does not extend to making health care decisions. To make health care decisions for the principal, separate durable power of attorneys for health care or a combined financial and health care durable power of attorney must be executed. A durable power of attorney for financial affairs might be limited to specific purposes, but generally that is not the case. If a durable power of attorney for financial affairs is limited in scope and a matter arises that is included in the power of attorney, a conservatorship or guardianship must be opened, which was what the durable power of attorney was designed to avoid. It is possible for a principal to give to more than one attorney in fact a durable power of attorney. One attorney in fact might have a limited durable power of attorney; whereas the other attorney in fact might have a general durable power of attorney.

A durable power of attorney for financial affairs can have a clause in the instrument that states that the power of attorney does not become effective until and unless the principal becomes incompetent. This is a safety feature that prevents the attorney in fact from acting for the principal until it is proven that the principal is in fact incompetent. For this reason it is called a "springing" power of attorney because it "springs" into force only when the principal is declared incompetent. The declaration of mental incapacity is usually covered in a clause that requires two or more medical doctors to diagnose the principal as incompetent. A notable disadvantage of a springing durable power of attorney is that during the period of time the principal is incompetent and before the doctors make the necessary diagnosis, no one is authorized to make valid business and health care decisions for the principal.

A durable power of attorney lapses on the death of the principal or the arrival of the termination date in the durable power of attorney instrument, regardless of the principal's competency. The whole purpose behind durable powers of attorney is to have a person authorized to act on the principal's behalf when the principal becomes mentally incompetent. In reality, this is the time when such a power of attorney is most necessary. Under the Uniform Durable Power of Attorney Act, all acts undertaken by the attorney in fact after the death of the principal but while in ignorance of the principal's death are still valid contracts against the principal's estate.

In executing a power of attorney for financial affairs, the attorney in fact is usually not required to give the principal annual accountings unless required by the power of attorney instrument. A few states such as North Carolina require the attorney in fact to file an annual accounting with its court, but a competent principal can waive the requirement.

A major concern many people have over a durable power of attorney is that the attorney in fact may take and otherwise mismanage their assets, after their mental incapacity, and their beneficiaries will be helpless to stop it. This is never the case. The probate court always has jurisdiction to oversee every durable power of attorney regardless of whether or not such power is documented in the durable power of attorney document. No court will ever let an attorney in fact intentionally mismanage or steal assets over which he may have control by virtue of a durable power of attorney. Anyone can raise their concerns to the court, and the court will order a hearing to investigate the matter. All states permit concerned persons to petition the court to review the administration of a durable power of attorney. An attorney in fact is a fiduciary and owes the principal a fiduciary duty to act both reasonably and responsibly. If the court finds an attorney in fact has breached his duty of care, it will remove the attorney in fact and surcharge (find the attorney in fact liable) for all of the damages caused by the attorney in fact's misconduct. Even if the durable power of attorney document states otherwise, probate courts always have the power to review the actions of an attorney in fact for improper conduct. The court will never permit an attorney in fact to misuse the faith and power of his position and then hide behind the durable power of attorney document to avoid judicial scrutiny. Anyone can take their suspicions of abuse to the court, and those suspicions will be investigated.

Under the Uniform Durable Power of Attorney Act, if a court appoints a conservator or guardian for the estate of a person who has created a durable power of attorney for financial affairs, the attorney in fact becomes accountable to the court appointee as well as the principal. The court appointed conservator or guardian can also terminate the durable power of attorney.

As long as he is legally competent, the principal retains the power to revoke the power of attorney. If the attorney does not act in accord with the wishes of a competent principal, the power of attorney can be revoked, terminating the authority of the attorney in fact. All that is needed for an effective revocation is for the principal to notify the attorney in fact that the durable power of attorney is revoked on a certain date and to demand the durable power of attorney assets held by the attorney in fact be returned to the principal by the date of revocation. The principal simply affixes a letter to the durable power of attorney document stating the durable power of attorney is revoked effective the certain date. If the power was recorded, the revocation must also be recorded to give constructive notice of the revocation to the world.

An attorney in fact can always resign. When the attorney in act resigns, he is replaced in the same manner as though he had died. Many durable power of attorney instruments name a successor attorney in fact to replace a dead or resigning attorney in fact. If the durable power of attorney does not provide for a successor attorney in fact, the durable power of attorney will terminate on the death or resignation of the attorney in fact. In a few states, most notably North Carolina, before an attorney in fact can resign, he must provide a full accounting of the durable power of attorney business during the time that he served as agent. If legally competent, the principal may waive the accounting.

Only a legally competent person can serve as an attorney in fact. If an attorney becomes incompetent all of his subsequent actions on behalf of the principal are voidable. An incompetent person cannot create a valid contract. Many durable power of attorney instruments have language that a successor attorney in fact takes over when the attorney in fact becomes unable to perform the duties of the attorney in fact. Even is the principal is unable to replace the attorney in fact because he, himself is incompetent, the attorney in fact may nevertheless be removed.

Durable powers of attorney for financial affairs forms can be purchased at office supply or stationary stores. Some states (such as California) publish statutory forms for durable powers of attorney for financial affairs. The use of these forms is usually not mandatory to create a valid durable power of attorney.


DURABLE POWER OF ATTORNEY FOR FINANCIAL AFFAIRS

KNOW ALL MEN BY THESE PRESENTS, that I, _______________________________ residing at _________________________________________do declare this to be a durable power of attorney.

This power of attorney shall not be affected by subsequent incapacity of the principal.

I hereby revoke all prior powers of attorney regardless of the type and to whom they may have been given.

I hereby nominate, constitute and appoint ________________________________whose address and telephone number is: ________________________________________________________________________________ _____________________________________________________________________________________

as my true and lawful attorney in fact, for me and in my name, place and stead and for my use and benefit to exercise the following powers:

This durable power of attorney shall become effective:

( ) Immediately upon execution of this durable power of attorney.

( ) Only after certification by two licensed physicians that I lack the mental capacity to make financial decisions for myself.

(1) Subject to any limitations in this document, I hereby grant to my agents full power and authority to act for me and in my name in any way that I myself could act with respect to the following matters to the extent that I am permitted to act through an agent:

(a)Real estate transactions.

(b) Tangible personal property transactions.

(c) Bond, share, and commodity transactions.

(d) Financial institution transactions.

(e) Business operating transactions.

(f) Insurance transactions.

(g) Retirement plan transactions.

(h) Estate transactions.

(i) Claims and litigations.

(j) Tax matters.

(k) Personal relationships and affairs.

(l) Benefits from military service.

(m) Records, reports and statements.

(n)I grant full and unqualified authority to my agents to delegate any and all of the foregoing powers to any person or persons whom my agents shall select.

(2) To ask, demand, sue for, recover, collect, and receive such sums of money, debts, dues, accounts, legacies, bequests, interest, dividends, annuities and demands whatsoever as are now or shall hereafter become due and owing payable or belonging to me and have, use, take all lawful ways and means in my name or otherwise for the recovery thereof by attachments, arrests, distress or otherwise and to compromise and agree to acquittances or other sufficient discharges for the same.

(3) For me in my name to make, seal and deliver, bargain, contract, agree for, purchase, receive and take lands, tenements and hereditaments and accept the possession of all lands and all deeds of assurance in the law therefor and to lease, let, demise, bargain, sell, remise, release, convey, mortgage and hypothecate lands, tenements and hereditaments on such covenants as they shall think fit.

(4) To sign, endorse, execute, acknowledge, deliver, receive and possess such applications, contracts, agreements, options, covenants, deeds, conveyances, trust deeds, security agreements, bills of sale, leases, mortgages, assignments, insurance policies, bills of lading, warehouse receipts, documents of title, bills, bonds, debentures, checks, drafts, bills of exchange, notes, stock certificates, proxies, warrants, commercial paper, receipts, withdrawal receipts and deposit instruments relating to accounts or deposits in or certificates of deposit of banks, savings-and-loans or other such institutions or associations, proofs of loss, evidences of debts, releases and satisfaction of mortgages, judgments, liens, security agreements and other debts and obligations and such other instruments in writing of whatever kind and nature as may be necessary or proper in the exercise of the rights and powers herein granted.

Most of the states which have statutory forms have combined both financial affairs and health care on the same form and therefore leave it to the Principal to indicate both the type and extent of the authority being transferred. Some states do, however, also have separate durable powers of attorney just for financial affairs whose use is usually not mandatory. For example, the forms that follow are the statutory durable power of attorney for financial affairs for California and New York.


RECORDING REQUESTED BY

AND WHEN RECORDED MAIL TO

_____________________________________________________________________________ Space above this line for recorder's use

UNIFORM STATUTORY FORM POWER OF ATTORNEY

(California Civil Code Section 2475)

NOTICE: The powers granted by this document are broad and sweeping. They are explained in the Uniform Statutory Form Power of Attorney Act (California Civil Code Sections 2475-2499.5, inclusive). If you have any questions about these powers, obtain competent legal advice. This document does not authorize anyone to make medical and other health care decisions for you. You may revoke this power of attorney if you later wish to do so.

I, QUINCY HARKIN MYERS appoint (your name and address)

MARTIN LIERBAG of 3336 LOVELAND ROAD, YOUNGSTOWN, OHIO 44502 (name and address of the person appointed, or of each person appointed if you want to designate more than one)

as my agent (attorney in fact) to act for me in any lawful way with respect to the following initialed subjects:

To Grant All of the Following Powers, initial the line in front of (N) and ignore the lines in front of the other powers.

To Grant One or More, but Fewer than All, of the following powers, initial the line in front of each power you are granting.

To Withhold a Power, do not initial the line in front of it. You may, but need not, cross out each power withheld.

INITIAL

_____(A) Real property transactions.

_____(B) Tangible personal property transactions.

_____(C) Stock and bond transactions.

_____(D) Commodity and option transactions.

_____(E) Banking and other financial institution

transactions.

_____(F) Business operating transactions.

_____(G) Insurance and annuity transactions.

_____(H) Estate, trust, and other beneficiary transactions.

_____(I) Claims and litigation.

_____(J) Personal and family maintenance.

_____(K) Benefits from social security, Medicare, Medicaid, or other governmental programs, or civil or military service.

_____(L) Retirement plan transactions.

_____(M) Tax matters.

QLM (N)ALL OF THE POWERS LISTED ABOVE.

You need not initial any other lines if you initial line (N).

SPECIAL INSTRUCTIONS:

On the following lines you may give special instructions limiting or extending the powers granted to your agent.

None.

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.

This power of attorney will continue to be effective even though I become incapacitated.

STRIKE THE PRECEDING SENTENCE IF YOU DO NOT WANT THIS POWER OF ATTORNEY TO CONTINUE IF YOU BECOME INCAPACITATED.

EXERCISE OF POWER OF ATTORNEY WHERE

MORE THAN ONE AGENT DESIGNATED

*** END OF SAMPLE VIEW OF THIS SECTION ***


NEW YORK

GENERAL OBLIGATIONS LAW, ARTICLE 5, TITLE 15,

SECTION 5-1501, ET SEQ.

GENERAL POWER OF ATTORNEY

"NOTICE: THIS IS AN IMPORTANT DOCUMENT. BEFORE SIGNING THIS DOCUMENT YOU SHOULD KNOW THESE IMPORTANT FACTS. THE PURPOSE OF THIS POWER OF ATTORNEY IS TO GIVE THE PERSON WHOM YOU DESIGNATE (YOUR "AGENT") BROAD POWERS TO HANDLE YOUR PROPERTY, WHICH MAY INCLUDE POWERS TO PLEDGE, SELL, OR OTHERWISE DISPOSE OF ANY REAL OR PERSONAL PROPERTY WITHOUT ADVANCE NOTICE TO YOU OR APPROVAL BY YOU. YOU MAY SPECIFY THAT THESE POWERS WILL EXIST EVEN AFTER YOU BECOME DISABLED, INCAPACITATED, OR INCOMPETENT. THE POWERS THAT YOU GIVE YOUR AGENT ARE EXPLAINED MORE FULLY IN NEW YORK GENERAL OBLIGATIONS LAW, ARTICLE 5, TITLE 15, SECTIONS 5-1502a THROUGH 5-1503, WHICH EXPRESSLY PERMITS THE USE OF ANY OTHER OR DIFFERENT FORM OF POWER OF ATTORNEY DESIRED BY THE PARTIES CONCERNED. THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL OR OTHER HEALTH CARE DECISIONS FOR YOU. IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU."

"Know All Men by These Presents, which are intended to constitute a GENERAL POWER OF ATTORNEY pursuant to Article 5, Title 15 of the New York General Obligations Law:

That I , _________________________________________________________________ name and address of the principal

do hereby appoint:________________________________________

(If 1 person is to be appointed agent, insert the name and address of the agent above)

(If 2 or more persons are to be appointed agents with each agent to be able to act ALONE without requiring the consent of any other agent appointed in order to act, insert the name and address above of each agent SEPARATELY appointed and BE SURE TO insert the word "OR" between "EACH" designation of an agent to show that "EACH" agent has COMPLETE power to act alone)

(If 2 or more persons are to be appointed agents to act TOGETHER and requiring the JOINT consent of ALL appointed agents to act with no one agent to be able to act alone, insert the names and addresses above of all agents JOINTLY appointed and BE SURE TO insert the word "AND" between EVERY designation of each agent to indicate that ALL agents listed are required to act together and NONE can act alone)

my attorney(s)-in-fact TO ACT

(If more than one agent is designated and the principal wants each agent alone to be able to exercise the power conferred, insert in this blank the word "SEPARATELY")

(If more than one agent is designated and the principal wants all of the designated agents together to exercise the power conferred, insert in this blank the word 'JOINTLY')

(The failure to make any insertion in this blank will require the agents to act either separately or jointly, in accordance with the principal's use of the "OR" or the word "AND" between every respective designation of such agents above. If the principal's wishes cannot be determined because he or she fails to insert the word "OR", "AND" "SEPARATELY", or "JOINTLY" as he or she is asked to do above, the principal will be deemed to require the agents designated above to act jointly.)

In my name, place and stead in any way which i could do, if I were personally present, with respect to the following matters as each of them is defined in Title 15 of Article 5 of the New York General obligations Law to the extent that I am permitted by law to act through an agent:

Initial in the opposite box any one or more of the subdivisions as to which the principal WANTS to give the agent authority.

("NOTICE: The principal must write his or her initials in the corresponding blank space of a box below with respect to each of the subdivisions (A) through (N) below for which the principal wants to give the agent(s) authority. If the blank space with a box for any particular subdivision is NOT initialed, NO AUTHORITY WILL BE GRANTED for matters that are included in that subdivision")

(A) real estate transactions; ( )

(B) chattels and goods transactions; ( )

(C) bonds, share, and commodities transactions; ( )

(D) banking transactions; ( )

(E) business operating transactions; ( )

(F) insurance transactions; ( )

(G) estate transactions; ( )

(H) claims and litigation; ( )

(I) personal relationships and affairs; ( )

(J) benefits from military service; ( )

(K) records, reports, and statements; ( )

(L) full and unqualified authority to my ( ) attorney(s)-in-fact to delegate any or all of the foregoing powers to any person or persons whom my attorney(s)-in-fact shall select;

(M) all other matters; ( )

(N) if the blank space in the box to the right is ( ) initialed by the principal, this power of attorney shall not be affected by the subsequent disability or incompetence of the principal;

(Special provisions and limitations may be included in the statutory short form power of attorney only if they conform to the requirements of section 5-150-3 of the New York General Corporations Law.)


III. DURABLE POWER OF ATTORNEY FOR HEALTH CARE

Within the last 15 years, all of the states have come to realize it is not always necessary to require a conservator or guardian to be appointed for an incompetent if the person has taken care to protect himself for this eventuality. The states have adopted either the Uniform Durable Power of Attorney Act or the Uniform Probate Code or have enacted their own durable power of attorney legislation. All states now permit a person to grant an attorney in fact the power of attorney to act on the principal's behalf, including health care decisions, after the principal has become mentally incompetent. A durable power of attorney for health care is a specialized form of power of attorney that gives the power to an attorney in fact to make health care decisions for a principal who has become incompetent. Durable powers of attorney for health care are valid in all states.

What an attorney in fact can do is governed by state law. States that have adopted statutory forms for durable powers of attorney usually list limitations in their statutes that bind the attorney in fact. Many states limit the scope of the medical decisions that can be made for a principal without a court conservator or guardian over the person. The medical decision limitations define acts reasonable attorney in fact would not make anyway. For example, in California an attorney in fact cannot authorize convulsive treatment, psychosurgery or commitment to a mental institution. Decisions on such technical topics should be made only after joint consultation with an attorney, the principal's doctors and the court. The attorney in fact does have the power to place an incompetent principal in a nursing home. In like manner, many durable power of attorney instruments (specifically those for health care) have clauses requiring the attorney in fact to be replaced with a designated successor when he becomes incompetent or otherwise unable to perform the duties of attorney in fact.

Unlike a durable power of attorney for financial affairs, a durable power of attorney for health care cannot be terminated by a court appointed conservator or guardian for a person who has one.

Some states have created mandatory statutory forms for the creation of durable powers of attorney for health care whereas other states have no particular forms or their statutory forms are not mandatory. The use of statutory forms is not mandatory. Even though the forms may not be mandatory, their use should be considered because there is less chance of ambiguities arising in a statutory form. Following is both a uniform durable power of attorney for health care and a combined uniform durable power of attorney form for financial affairs and health care for use in states that have not adopted a statutory form. In addition a specific durable power of attorney for health care for use in Ohio and Tennessee also follow. Both Ohio and Tennessee require any durable power of attorney to have a specific notice provision in it in order to be valid. These forms have the required notices.

Following this chapter are also the Statutory Durable Power of Attorney Forms, medical directives or health proxies, which appoint attorney in facts for health care for the following states:

  1. Alaska
  2. California
  3. Connecticut
  4. District of Columbia
  5. Illinois
  6. Georgia
  7. Idaho
  8. Kansas
  9. New Mexico
  10. Nevada
  11. New Hampshire
  12. New York Health Proxy
  13. Oregon Advance Directive
  14. Rhode Island
  15. South Carolina
  16. Texas
  17. Utah Special Power of Attorney
  18. Vermont
  19. West Virginia Medical Power of Attorney
  20. Wisconsin


KNOW ALL MEN BY THESE PRESENTS, that I, __________________________________ residing at _______________________________________do declare this to be a durable power of attorney.

This power of attorney shall not be affected by subsequent incapacity of the principal.

I hereby revoke all prior powers of attorney regardless of the type and to whom they may have been given.

I hereby nominate, constitute and appoint _________________________________________whose address and telephone number is: _________________________________________________________________ ___________________________________________________________________________________as my true and lawful attorney in fact, for me and in my name, place and stead, and for my use and benefit, to exercise the following powers:

This durable power of attorney shall become effective:

( ) Immediately upon execution of this durable power of attorney.

( ) Only after certification by two licensed physicians that I lack the mental capacity to make health care and financial decisions for myself.

(1) To make health care decisions on my behalf. "Health care decisions" means decisions on my care, treatment and procedures to be used to maintain, diagnose and treat my physical condition. This durable power of attorney as it pertains to health care decisions does not carry the power to authorize any of the following acts:

(a) Any commitment or placement in a mental health facility,

(b) Any convulsive treatment, or

(c) Any psychosurgery.

Furthermore, I hereby expressly authorize any physician, hospital, or other person or organization to release and disclose to my agent any information any of them may have concerning any treatment, diagnosis, recommendation or other fact, which they may have concerning my physical condition and any health care, counsel, treatment or assistance provided to me either before or after the execution of the power of attorney, any privilege hereby being expressly waived as to such disclosures. This waiver shall extend to communications to my agent only and shall not be deemed a general waiver of the privilege. My agent may, however, authorize release of such information to such third persons as my agent deems to be reasonable or necessary in the exercise of the powers granted in this instrument.

(3) Subject to any limitations in this document, my agent has the power and authority to do all of the following:

yes ( ) no ( ) (a) Authorize an autopsy.

yes ( ) no ( ) (b) Make a disposition of a part or parts of my body under the Uniform Anatomical Gift Act.

yes ( ) no ( ) (c) Direct disposition of my remains.

The attorney in fact under this durable power of attorney is specifically not given and does not have the authority or power to revoke, amend or alter any living will declaration or last will and testament that I have created or will create.

The Attorney in Fact ( ) is ( ) is not granted reasonable compensation for services rendered under this Power of Attorney.

Special instructions or authority: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________


DURABLE POWER OF ATTORNEY

FOR BOTH HEALTH CARE AND FINANCIAL AFFAIRS

KNOW ALL PEOPLE BY THESE PRESENTS, that I, ___________________________________ residing at _______________________________________________ , phone number_______________________ do declare this to be a Durable Power of Attorney.

This Durable Power of Attorney shall not be affected by subsequent incapacity of the principal.

This Durable Power of Attorney shall become effective:

( ) Immediately upon the execution of this Durable Power of Attorney.

( ) Only after certification by two licensed physicians that I have been determined to lack the capacity to make health care and financial decisions for myself.

I hereby revoke all prior powers of attorney regardless of the type or to whom they may have been given.

I hereby nominate, constitute and appoint ____________________, whose address and telephone number are: ___________________________________________________________________________________ ___________________________________________________ , as my true and lawful Attorney in Fact, for me and in my name, place and stead, and for my use and benefit, to exercise the following powers:

(1) To make health care decisions on my behalf. Health care decisions means decisions on my care, treatment, or procedures to be utilized in order to maintain, diagnose or treat my physical condition. This Durable Power of Attorney, as it relates to health care decisions, does not carry with it the power to authorize any of the following acts:

(A) Any commitment or placement in a mental health facility,

(B) Any convulsive treatment, or

(C) Any psychosurgery.

Furthermore, I hereby expressly authorize any physician, hospital, and any other person or organization, to release and disclose to my agent any information any of them may have concerning my physical condition and any health care, counsel, treatment, or assistance provided to me either before or after the execution of this power of attorney, any privilege hereby being expressly waived to such disclosures. This waiver shall extend to communications to my agent only and shall not be deemed a general waiver of the privilege. My agent may, however, authorize release of such information to such third persons as my agent deems to be reasonable or necessary in the exercise of the powers granted in this instrument.

(2) Subject to any limitations in this document, my agent has the power and authority to do all of the following:

yes ( ) no ( ) (a) Authorize an autopsy.

yes ( ) no ( ) (b) Make a disposition of a part or parts of my body under the Uniform Anatomical Gift Act.

yes ( ) no ( ) (c) Direct disposition of my remains.

(3) Subject to any limitations in this document, I hereby grant to my agent full power and authority to act for me in my name, in any way which I myself could act, with respect to the following matters as each of them to the extent that I am permitted to act through an agent:

(A) Real estate transactions,

(B) Tangible personal property transactions,

(C) Bond, share and commodity transactions,

(D) Financial institution transactions,

(E) Business operating transactions,

(F) Insurance transactions,

(G) Retirement plan transactions,

(H) Estate transactions,

(I) Claims and litigation,

(J) Tax matters,

(K) Personal relationships and affairs,

(L) Benefits from military service,

(M) Records, reports and statements,

(N) Full and unqualified authority to my agent to delegate any and all of the foregoing powers to any person or persons whom my agent shall delegate.

(4) To ask, demand, sue for, recover, collect, and receive such sums of money, debts, dues accounts, legacies, bequests, interest, dividends, annuities, and demands whatsoever as are now or shall hereafter become due, owing payable or belonging to me and have, use and take all lawful ways and means in my name or otherwise, and to compromise and agree for the acquittance or other sufficient discharge of the same.

(5) For me in my name, to make, seal, and deliver, to bargain, contract, agree for, purchase, receive, and take lands, tenements, hereditaments and accept the possession of all lands, and deeds of assurances, in the law therefor, and to lease, let, demise, bargain, sell, remise, release, convey, mortgage, and hypothecate lands, tenements and hereditaments upon such covenants as they shall think fit.

(6) To sign, endorse, execute, acknowledge, deliver, receive, and possess such applications, contracts, agreements, options, covenants, deeds, conveyances, trust deeds, security agreements, bills of sale, leases, mortgages, assignments, insurance policies, bills of lading, warehouse receipts, documents of title, bills, bonds, debentures, checks, drafts, bills of exchange, notes, stock certificates, proxies, warrants, commercial paper, receipts, withdrawal receipts and deposit instruments relating to accounts or deposits in or certificates of deposits of banks, savings and loans or other such institutions or associations, proof of loss, evidences of debts, releases and satisfaction of mortgages, judgments, liens, security agreements, and other debts and obligations, and such other instruments in writing of whatever kind and nature as may be necessary or proper in the exercise of the rights and powers herein granted.


STATUTORY FORM DURABLE POWER OF ATTORNEY FOR HEALTH CARE

(California Civil Code Section 2500)

WARNING TO PERSON EXECUTING THIS DOCUMENT

This is an important document which is authorized by the Keene Health Care Agent Act. Before executing this document, you should know these facts:

This document gives the person you designate as your agent (the attorney in fact) the power to make health care decisions for you. Your agent must act consistently with your desires as stated in this document or otherwise made known.

Except as you otherwise specify in this document, this document gives your agent the power to consent to your doctor not giving treatment or stopping treatment necessary to keep you alive.

Notwithstanding this document, you have the right to make medical and other health care decisions for yourself as long as you can give informed consent with respect to the particular decision. In addition, no treatment may be given to you over your objection at any time, and health care necessary to keep you alive may not be stopped or withheld if you object any time.

This document gives your agent authority to consent, to refuse to consent, or to withdraw consent to any care, treatment, service, or procedure to maintain, diagnose, or treat a physical or mental condition. This power is subject to any statement of your desires and any limitations that you include in this document. You may state in this document any types of treatment that you do not desire. In addition, a court can take away the power of your agent to make health care decisions for you if the agent (1) authorizes anything that is illegal, (2) acts contrary to your known desires, or (3) where your desires are not known, does anything that is clearly contrary to your best interests.

The powers given by this document will exist for an indefinite period of time unless you limit the duration in this document.

You have the right to revoke the authority of your agent by notifying your agent or your treating doctor, hospital, or other health care provider orally or in writing of the revocation.

Your agent has the right to examine your medical records and to consent to their disclosure unless you limit this right in this document.

Unless you otherwise specify in this document, this document gives your agent the power to (1) authorize an autopsy, (2) donate your body or parts thereof for transplant or therapeutic or educational or scientific purposes, and (3) direct the disposition of your remains.

This document revokes any prior durable power of attorney for health care.

You should carefully read and follow the witnessing procedure described at the end of this form. The document will not be valid unless you comply with the witnessing procedure.

If there is anything in this document that you do not understand, you should ask a lawyer to explain it to you.

Your agent may need this document immediately in the case of an emergency that requires a decision concerning your health care. Either keep this document where it is immediately available to your agent and alternate agents or give each of them an executed copy of this document. You may also want to give your doctor an executed copy of this document.

Do not use this form if you are a conservatee under the Lanterman-Petris-Short Act and you want to appoint your conservator as your agent. You can only do that if the appointment document includes a certificate of your attorney.

1. Designation of Health Care Agent. I,____________________ do hereby designate and appoint ____________________________________________________________________________ ____________________________________________________________________________

(Insert name, address, and telephone number of one individual only as your agent to make health care decisions for you. None of the following may be designated as your agent: [1] your treating health care provider, [2] a nonrelative employee of your treating health care provider, [3] an operator of a community care facility, [4] a nonrelative employee of an operator of a community care facility, [5] an operator of a residential care facility for the elderly or [6] a nonrelative employee of an operator of a residential care facility for the elderly.)

as my attorney in fact (agent) to make health care decisions for me as authorized in this document. For the purposes of this document "health care decision" means consent, refusal to consent, or withdrawal of consent to any care, treatment, service or procedure to maintain, diagnose or treat any of the individual's physical or mental condition.


OHIO

OHIO REVISED CODE SECTION 1337.17

NOTICE TO ADULT EXECUTING THIS DOCUMENT

This is an important legal document. Before executing this document, you should know these facts:

This document gives the person you designate (the attorney in fact) the power to make MOST health care decisions for you if you lose the capacity to make informed health care decisions to yourself. The power is effective only when your attending physician determines that you have lost the capacity to make informed health care decisions for yourself and, notwithstanding this document, as long as you have the capacity to make informed health care decisions for yourself, you retain the right to make all medical and other health care decisions for yourself.

You may include specific limitations inn this document on the authority of the attorney in fact to make health care decisions for you.

Subject to any specific limitations you include in this document, if your attending physician determines that you have lost the capacity to make an informed decision on a health care matter, the attorney in fact GENERALLY will be authorized by this document to make health care decisions for you to the same extent as you could make those decisions yourself, if you had the capacity to do so. The authority of the attorney in fact to make health care decisions for you GENERALLY will include the authority to give informed consent, to refuse you give informed consent, or to withdraw informed consent to any care, treatment, service, or procedure to maintain, diagnose, or treat a physical or mental condition.

HOWEVER, even if the attorney in fact has general authority to make health care decisions for you under this document, the attorney in fact NEVER will be authorized to do any of the following:

(1) Refuse or withdraw informed consent to life-sustaining treatment (unless your attending physician and one other physician who examines you determine, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, that either of the following applies:

(a) You are suffering from an irreversible, incurable, and untreatable condition caused by disease, illness, or injury from which (i) there can be no recovery, and (ii) your death is likely to occur with a relatively short time if life-sustaining treatment is not administered, and you attending physician additionally determined, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, that there is no reasonable possibility that you will regain the capacity to make informed health care decision for yourself.

(b) You are in a state of permanent unconsciousness that is characterized by you being irreversibly unaware of yourself and your environment and by a total loss of cerebral cortical functioning, resulting in you having no capacity to experience pain or suffering, and your attending physician additionally determines, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, that there is no reasonable possibility that you will regain the capacity to make informed health care decisions for yourself.

(2) Refuse or withdraw informed consent to health care necessary to provide you with comfort care (except that, if he is not prohibited from doing so under (4) below, the attorney in fact could refuse or withdraw informed consent to the provision of nutrition or hydration to you described under (4) below). (You should understand that comfort care is defined in Ohio law to mean artificially or technologically administered sustenance (nutrition) or fluids (hydration) when administered to diminish your pain or discomfort, not to postpone your death, and any other medical or nursing procedure, treatment, intervention, or other measure that would be taken to diminish your pain or discomfort, not to postpone your death. Consequently, if your attending physician were to determine that a previously described medical or nursing procedure, treatment, intervention, or other measure will not or no longer will serve to provide comfort to you or alleviate your pain, then subject to (4) below, your attorney in fact would be authorized to refuse or withdraw informed consent to the procedure, treatment, intervention, or other measure.);

(3) Refuse or withdraw informed consent to health care for you if you are pregnant and if the refusal or withdrawal would terminate the pregnancy (unless the pregnancy or health care would pose a substantial risk to your life, or unless your attending physician and at least one other physician who examines you determine, to a reasonable degree of medical certainty, and in accordance with reasonable medical standards, that the fetus would not be born alive);

(4) Refuse or withdraw informed consent to the provision of artificially or technologically administered sustenance (nutrition) or fluids (hydration) to you unless;

(a) You are in a terminal condition or in a permanently unconscious state.

(b) Your attending physician and at least one other physician who has examined you determine, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, that nutrition or hydration will not or no longer will serve to provide comfort to you or alleviate your pain.

(c) If, but only if, you are in a permanently unconscious state, you authorize the attorney in fact to refuse or withdraw informed consent to the provision of nutrition or hydration to you by both of the following in this document:

(i) Including a statement in capital letters that the attorney in fact may refuse or withdraw informed consent to the provision of nutrition or hydration to you if you are in a permanently unconscious state and if the determination that nutrition or hydration will not or no longer will serve to provide comfort to you or alleviate your pain is made, or checking or otherwise marking a box or line (if any) that is adjacent to a similar statement on this document.

(ii) Placing your initials or signature underneath or adjacent to the statement, check or other make previously described.

(d) Your attending physician determines, in good faith, that you authorized the attorney in fact to refuse or withdraw informed consent to the provision of nutrition or hydration to you if you are in a permanently unconscious state by complying with the requirements of (4)(c)(i) and (ii) above.

(5) Withdraw informed consent to any health care to which you previously consented, unless a change to your physical condition has significantly decreased the benefit of that health care to you, or unless the health care is not, or is no longer, significantly effective in achieving the purposes for which you consented to its use.

Additionally, when exercising his authority to make health care decisions for you, the attorney in fact will have to act consistently with you desires or, if your desires are unknown, to act in your best interest. You may express your desires to the attorney in fact by including them in this document or by making them known to him in another manner.

When acting pursuant to this document, the attorney in fact generally will have the same rights that you have to receive information about proposed health care, to review health care records, and to consent to the disclosure of health care records. You can limit that right in this document if you so choose.

Generally, you may designate any competent adult as the attorney in fact under this document. However,, you cannot designate your attending physician or administrator of any nursing home in which you are receiving care as the attorney in fact under this document. Additionally, you cannot designate an employee or agent of your attending physician, or an employee or agent of a health care facility at which you are being treated, as the attorney in fact under this document, unless either type of employee or agent is a competent adult and you and the employee or agent are members of the same religious order.

This document has no expiration date under Ohio law, but you may choose to specify a date upon which you durable power of attorney for health care generally expire. However, if you specific an expiration date and then lack the capacity to make informed health care decisions for yourself on that date, the document and the power it grants to your attorney in fact will continue in effect until you regain the capacity to make informed health care decisions for yourself.

You have the right to revoke the designation of the attorney in fact and the right to revoke the entire document at any time when you express your intention to make the revocation. However, if you made your attending physician aware of this document, any such revocation will be effective only when you communicate it to your attending physician, or when a witness to the revocation or other health care personnel to whom the revocation is communicated by such a witness communicate it to your attending physician.

If you execute this document and create a valid durable power of attorney for health care with it, it will revoke any prior, valid durable power of attorney for health care that you created, unless you indicate otherwise in this document.

This document is not valid as a durable power of attorney for health care unless sit is acknowledged before a notary public or is signed by at least two adult witnesses who are present when you sign or acknowledge your signature. No person who is related to you by blood, marriage or adoption mat be a witness. The attorney in fact, your attending physician, and the administrator of any nursing home in which you are receiving care are also ineligible to be witnesses.

If there is anything in this document that you do not understand, you should consult an attorney.

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

KNOW ALL MEN BY THESE PRESENTS, that I, ____________________________________ residing at ______________________________________do declare this to be a durable power of attorney.

This power of attorney shall not be affected by subsequent incapacity of the principal.

I hereby revoke all prior powers of attorney regardless of the type and to whom they may have been given.

I hereby nominate, constitute and appoint _______________________________________ whose address and telephone number is: ______________________________________________________________________ _________________________________________________________________________________

as my true and lawful attorney in fact, for me and in my name, place and stead, and for my use and benefit, to exercise the following powers:

This durable power of attorney shall become effective:

( ) Immediately upon execution of this durable power of attorney.

( ) Only after certification by two licensed physicians that I lack the mental capacity to make health care and financial decisions for myself.

(1) To make health care decisions on my behalf. "Health care decisions" means decisions on my care, treatment and procedures to be used to maintain, diagnose and treat my physical condition. This durable power of attorney as it pertains to health care decisions does not carry the power to authorize any of the following acts:

(a) Any commitment or placement in a mental health facility,

(b) Any convulsive treatment, or

(c) Any psychosurgery.

Furthermore, I hereby expressly authorize any physician, hospital, or other person or organization to release and disclose to my agent any information any of them may have concerning any treatment, diagnosis, recommendation or other fact, which they may have concerning my physical condition and any health care, counsel, treatment or assistance provided to me either before or after the execution of the power of attorney, any privilege hereby being expressly waived as to such disclosures. This waiver shall extend to communications to my agent only and shall not be deemed a general waiver of the privilege. My agent may, however, authorize release of such information to such third persons as my agent deems to be reasonable or necessary in the exercise of the powers granted in this instrument.

(3) Subject to any limitations in this document, my agent has the power and authority to do all of the following:

yes ( ) no ( ) (a) Authorize an autopsy.

yes ( ) no ( ) (b) Make a disposition of a part or parts of my body under the Uniform Anatomical Gift Act.

yes ( ) no ( ) (c) Direct disposition of my remains.

The attorney in fact under this durable power of attorney is specifically not given and does not have the authority or power to revoke, amend or alter any living will declaration or last will and testament that I have created or will create.


TENNESSEE

TENNESSEE CODE ANNOTATED SECTION 34-6-201

WARNING TO PERSON EXECUTING THIS DOCUMENT

This is an important legal document. Before executing this document you should know these important fact.

This document gives the person you designate as your agent (attorney in fact) the power to make health care decisions for you. Your agent must act consistently with your desires as stated in this document.

Except as you otherwise specify in this document, this document gives your agent the power to consent to your doctor not giving treatment or stopping treatment necessary to keep you alive.

Notwithstanding this document, you have the right to make medical and other health care decisions for yourself so long as you can give informed consent with respect to the particular decision. In addition, no treatment may be given to you over your objection, and health care necessary to keep you alive may not be stopped or withheld if you object at the time.

This document gives your agent authority to consent, to refuse to consent, or to withdraw consent to any care, treatment, service, or procedure to maintain, diagnose or treat a physical or mental condition. This power is subject to any limitations that you include in this document. You may state in this document any types of treatment that you do not desire. In addition, a court can take away the power of your agent to make health care decisions for you if your agent: (11) authorizes anything that is illegal; or (2) acts contrary to your desires as stated in this document.

You have the right to revoke the authority of your agent by notifying your agent or your treating physician, hospital, or other health care provider orally or in writing of the revocation.

Your agent has the right to examine your medical records and to consent to their disclosure unless you limit this right in this document.

Unless you otherwise specify in this document, this document gives your agent the power after you die to: (1) authorize an autopsy; (2) donate your body or parts thereof for transplant or therapeutic or educational or scientific purposes; and (3) direct the disposition of your remains.

If there is anything in this document that you do not understand, you should ask an attorney to explain it to you.

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

KNOW ALL MEN BY THESE PRESENTS, that I, ________________________________ residing at ____________________________________________ do declare this to be a durable power of attorney.

This power of attorney shall not be affected by subsequent incapacity of the principal.

I hereby revoke all prior powers of attorney regardless of the type and to whom they may have been given.

I hereby nominate, constitute and appoint _________________________________________whose address and telephone number is: ________________________________________________________________ ________________________________________________________________________as my true and lawful attorney in fact, for me and in my name, place and stead, and for my use and benefit, to exercise the following powers:

This durable power of attorney shall become effective:

( ) Immediately upon execution of this durable power of attorney.

( ) Only after certification by two licensed physicians that I lack the mental capacity to make health care and financial decisions for myself.

(1) To make health care decisions on my behalf. "Health care decisions" means decisions on my care, treatment and procedures to be used to maintain, diagnose and treat my physical condition. This durable power of attorney as it pertains to health care decisions does not carry the power to authorize any of the following acts:

(a) Any commitment or placement in a mental health facility,

(b) Any convulsive treatment, or

(c) Any psychosurgery.

Furthermore, I hereby expressly authorize any physician, hospital, or other person or organization to release and disclose to my agent any information any of them may have concerning any treatment, diagnosis, recommendation or other fact, which they may have concerning my physical condition and any health care, counsel, treatment or assistance provided to me either before or after the execution of the power of attorney, any privilege hereby being expressly waived as to such disclosures. This waiver shall extend to communications to my agent only and shall not be deemed a general waiver of the privilege. My agent may, however, authorize release of such information to such third persons as my agent deems to be reasonable or necessary in the exercise of the powers granted in this instrument.


ALASKA

STATUTORY FORM OF POWER OF ATTORNEY

ALASKA STATUTES SECTION 13.26.332

GENERAL POWER OF ATTORNEY

THE POWERS GRANTED FROM THE PRINCIPAL TO THE AGENT OR AGENTS IN THE FOLLOWING DOCUMENT ARE VERY BROAD. THEY MAY INCLUDE THE POWER TO DISPOSE, SELL, CONVEY, AND ENCUMBER YOUR REAL AND PERSONAL; PROPERTY, AND THE POWER TO MAKE YOUR HEALTH CARE DECISIONS. THE FOLLOWING DOCUMENT SHOULD ONLY BE USED AFTER CAREFUL CONSIDERATION. IF YOU HAVE ANY QUESTIONS ABOUT THIS DOCUMENT, YOU SHOULD SEEK COMPETENT ADVICE.

YOU MAY REVOKE THIS POWER OF ATTORNEY AT ANY TIME.

Pursuant to AS 13.26.338 - 13.26.353,

______________________________________________________________________________________ (Name of Principal

of ____________________________________________________________________ ,do hereby appoint __________________________________________________________________________________________________________________________________________________________________________________ (Name and address of agent or agents)

my attorney(s)-in-fact to act as I have checked below in my name, place and stead in any way which I myself could do, if I were personally present, with respect to the following matters, as each of them is defined in AS 13.26.344, to the full extent that I am permitted by law to act through an agent.

THE AGENT OR AGENTS YOU HAVE APPOINTED WILL HAVE ALL THE POWERS LISTED BELOW UNLESS YOU

DRAW A LINE THOUGH A CATEGORY; AND

INITIAL THE BOX OPPOSITE THAT CATEGORY

(A) real estate transactions ( )

(B) transactions involving tangible personal property, ( ) chattels and goods

(C) bonds, shares, and commodities transactions ( )

(D) banking transactions ( )

(E) business operating transactions ( )

(F) insurance transactions ( )

(G) estate transactions ( )

(H) gift transactions ( )

(I) claims and litigation ( )

(J) personal relationships and affairs ( )

(K) benefits from government programs and military service ( )

(L) health care services ( )

(M) records, reports, and statements ( )

(N) delegation ( )

(o) all other matters, including those specified as follows: ( )

IF YOU HAVE APPOINTED MORE THAN ONE AGENT, CHECK ONE OF THE FOLLOWING:

( ) Each agent may exercise the powers conferred separately without the consent of any other agent.

( ) All agents shall exercise the powers conferred jointly, with the consent of all other agents.

TO INDICATE WHEN THIS DOCUMENT SHALL BECOME EFFECTIVE, CHECK ONE OF THE FOLLOWING:

( ) This document shall become effective upon the date of my signature.

( ) This document shall be come effective upon the date of my disability and shall not otherwise be affected by my disability.

IF YOU HAVE INDICATED THAT THIS DOCUMENT SHALL BECOME EFFECTIVE ON THE DATE OF YOUR SIGNATURE, CHECK ONE OF THE FOLLOWING:

( ) This document shall not be affected by my subsequent disability.

( ) This document shall be revoked by my subsequent disability.

IF YOU HAVE INDICATED THAT THIS DOCUMENT SHALL BECOME EFFECTIVE UPON THE DATE OF YOUR SIGNATURE AND WANT TO LIMIT THE TERM OF THIS DOCUMENT, COMPLETE THE FOLLOWING:


CONNECTICUT

STATUTORY SHORT FORM POWER OF ATTORNEY

Section 1-43

NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. THEY ARE DEFINED IN CONNECTICUT STATUTORY SHORT FORM POWER OF ATTORNEY ACT, SECTION 1-42 TO 1-56, INCLUSIVE, OF THE General STATUTES, WHICH EXPRESSLY PERMITS THE USE OF ANY OTHER DIFFERENT FORM OF POWER OF ATTORNEY DESIRED BY THE PARTIES CONCERNED.

KNOW ALL MEN BY THESE PRESENTS, which are intended to constitute a GENERAL POWER OF ATTORNEY pursuant to the Connecticut Short Form Power of Attorney Act:

That I __________________________________________________________________ (insert name and address of the principal)

do hereby appoint __________________________________________________________________ (insert name and address of the agent, or each

agent, if more than one is designated)

my attorney(s)-in-fact TO ACT.....

If more than one agent is designated and the principal wishes each agent alone to be able to exercise the power conferred, insert in this blank the word "SEVERALLY". Failure to make any insertion or the insertion of the word "JOINTLY" shall require the agents to act jointly.

FIRST: In my name, place and stead in any way which I myself could do, if I were personally present, with respect to the following matters as each of then is defined in the Connecticut Statutory Short Form Power of Attorney Act to the extent that I am permitted by law to act through an agent:

(Strike out and initial in the opposite box any one or more subdivisions as to which the principal DOES NOT to give the

agent authority, Such elimination of any one or more subdivisions (A) to (L), inclusive, shall automatically constitute an elimination also of subdivision (M).)

To strike out any subdivision the principal must draw a line through the text of that subdivision AND write his initials in the box opposite.

(A) real estate transactions ( )

(B) chattels and goods transactions ( )

(C) bonds, share, and commodities transactions ( )

(D) banking transactions ( )

(E) business operating transactions ( )

(F) insurance transactions ( )

(G) estate transactions ( )

(H) claims and litigation ( )

(I) personal relationships and affairs ( )

(J) benefits from military service ( )

(K) records, reports, and statements ( )

(L) health care decisions ( )

(M) all other matters: ( )


DISTRICT OF COLUMBIA

DC CODE ANNOTATED 21-2207

POWER OF ATTORNEY FOR HEALTH CARE

INFORMATION ABOUT THIS DOCUMENT

THIS IS AN IMPORTANT LEGAL DOCUMENT, BEFORE SIGNING THIS DOCUMENT, IT IS VITAL FOR YOU TO KNOW AND UNDERSTAND THESE FACTS:

THIS DOCUMENT GIVES THE PERSON YOU NAME AS YOUR ATTORNEY IN FACT THE POWER TO MAKE HEALTH-CARE DECISIONS FOR YOU IF YOU CANNOT MAKE THE DECISIONS FOR YOURSELF.

AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU HAVE THE RIGHT TO MAKE HEALTH CARE DECISIONS FOR YOURSELF IF YOU ARE MENTALLY COMPETENT TO DO SO. IN ADDITION, AFTER YOU HAVE SIGNED THIS DOCUMENT, NO TREATMENT MAY BE GIVEN TO YOU OR STOPPED OVER YOUR OBJECTION IF YOU ARE MENTALLY COMPETENT TO MAKE THAT DECISION.

YOU MAY STATE IN THIS DOCUMENT ANY TYPE OF TREATMENT THAT YOU DO NOT DESIRE AND ANY THAT YOU WANT TO MAKE SURE YOU RECEIVE.

YOU HAVE THE RIGHT TO TAKE AWAY THE AUTHORITY OF YOUR ATTORNEY IN FACT, UNLESS YOU HAVE BEEN ADJUDICATED INCOMPETENT, BY NOTIFYING YOUR ATTORNEY IN FACT OR HEALTH-CARE PROVIDER EITHER ORALLY OR IN WRITING. SHOULD YOU REVOKE THE AUTHORITY OF YOUR ATTORNEY IN FAT, IT IS ADVISABLE TO REVOKE IN WRITING AND TO PLACE COPIES OF THE REVOCATION WHEREVER THIS DOCUMENT IS LOCATED.

IF THERE IS ANYTHING IN THIS DOCUMENT THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A SOCIAL WORKER, LAWYER OR OTHER PERSON TO EXPLAIN IT TO YOU.

YOU SHOULD KEEP A COPY OF THIS DOCUMENT AFTER YOU HAVE SIGNED IT. GIVE A COPY OF THIS DOCUMENT TO THE PERSON YOU NAME AS YOUR ATTORNEY IN FACT. IF YOU ARE IN A HEALTH-CARE FACILITY, A COPY OF THIS DOCUMENT SHOULD BE INCLUDED IN YOUR MEDICAL RECORD.

I, ________________________________________________ hereby appoint

name _________________________________________________________

home address __________________________________________________

home telephone number___________________________________________

work telephone number___________________________________________

as my attorney in fact to make health-care decisions for me if I become unable to make my own health-care decisions. This gives my attorney in fact the power to grant, refuse, or withdraw consent on my behalf for any health-care service, treatment or procedure. My attorney in fact also has the authority to talk to health-care personnel, get information and sign forms necessary to carry out these decisions.

If the person named as my attorney in fact is not available or is unable to act as my attorney in fact, I appoint the following person to serve in the order listed below.

1. name ____________________________________________________________

home address _______________________________________________________

home telephone number________________________________________________

work telephone number________________________________________________

2. name_____________________________________________________________

home address ________________________________________________________

home telephone number_________________________________________________

work telephone number_________________________________________________

With this document, I intend to create a power of attorney for health care, which shall take effect if I become incapable of making my own health care decisions and shall continue during that incapacity.


GEORGIA

STATUTORY SHORT FORM

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

NOTICE: THE PURPOSE OF THIS POWER OF ATTORNEY IS TO GIVE THE PERSON YOU DESIGNATE (YOUR AGENT) BROAD POWERS TO MAKE HEALTH CARE DECISIONS FOR YOU, INCLUDING THE POWER TO REQUIRE, CONSENT TO, OR WITHDRAW ANY TYPE OF PERSONAL CARE OR MEDICAL TREATMENT FOR ANY PHYSICAL OR MENTAL CONDITION AND TO ADMIT YOU TO OR DISCHARGE YOU FROM ANY HOSPITAL, HOME OR OTHER INSTITUTION; BUT NOT INCLUDING PSYCHOSURGERY, STERILIZATION, OR INVOLUNTARY HOSPITALIZATION OR TREATMENT COVERED BY TITLE 37 OF THE OFFICIAL CODE OF GEORGIA ANNOTATED. THIS FORM DOES NOT IMPOSE A DUTY ON YOUR AGENT TO EXERCISE GRANTED POWERS; BUT WHEN A POWER IS EXERCISED, YOUR AGENT WILL HAVE TO USE DUE CARE TO ACT FOR YOUR BENEFIT AND IN ACCORDANCE WITH THIS FORM. A COURT CAN TAKE AWAY THE POWERS OF YOUR AGENT IF IT FINDS THE AGENT IS NOT ACTING PROPERLY. YOU MAY NAME CO-AGENTS AND SUCCESSOR AGENTS UNDER THIS FORM, BUT YOU MAY NOT NAME A HEALTH CARE PROVIDER WHO MAY BE DIRECTLY OR INDIRECTLY INVOLVED IN RENDERING HEALTH CARE TO YOU UNDER THIS POWER. UNLESS YOU EXPRESSLY LIMIT THE DURATION OF THIS POWER IN THE MANNER PROVIDED BELOW OR UNTIL YOU REVOKE THIS POWER OR A COURT ACTING ON YOUR BEHALF TERMINATES IT, YOUR AGENT MAY EXERCISE THE POWERS GIVEN IN THIS POWER THROUGHOUT YOUR LIFETIME, EVEN AFTER YOU BECOME DISABLE, INCAPACITATED, OR INCOMPETENT. THE POWERS YOU GIVE YOUR AGENT, YOUR RIGHT TO REVOKE THOSE POWERS AND THE PENALTIES FOR VIOLATING THE LAW ARE EXPLAINED MORE FULLY IN CODE SECTIONS 31-36-10 OF THE GEORGIA "DURABLE POWER OF ATTORNEY FOR HEALTH CARE ACT" OF WHICH THIS FORM IS A PART. THAT ACT EXPRESSLY PERMITS THE USE OF ANY DIFFERENT FORM OF POWER OF ATTORNEY YOU MAY DESIRE. IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU.

DURABLE POWER OF ATTORNEY made this day of 199 .

1. I, ____________________________________________________________________ insert name and address of principal

hereby appoint __________________________________________________________________ insert name and address of agent

as my attorney in fact (my agent) to act for me and in my own name in any way I could act in person to make any and all decisions for me concerning my personal care, medical treatment, hospitalization, and health care and to require, withhold, or withdraw any type of medical treatment or procedure, even though my death may ensue. My agent shall have the same access to my medical records that I have, including the right to disclose the contents to others. My agent shall also have full power to make a disposition of any part or all of my body for medical purposes, authorize an autopsy of my body, and direct the disposition of my remains.

THE ABOVE GRANT OF POWER IS INTENDED TO BE AS BROAD AS POSSIBLE SO THAT YOUR AGENT WILL HAVE AUTHORITY TO MAKE ANY DECISION YOU COULD MAKE TO OBTAIN OR TERMINATE ANY TYPE OF HEALTH CARE, INCLUDING WITHDRAWAL OF NOURISHMENT AND FLUIDS AND OTHER LIFE-SUSTAINING OR DEATH-DELAYING MEASURES, IF YOUR AGENT BELIEVES SUCH ACTION WOULD BE CONSISTENT WITH YOUR INTENT AND DESIRES. IF YOU WISH TO LIMIT THE SCOPE OF YOUR AGENT'S POWERS OR PRESCRIBE SPECIAL RULES OR LIMIT THE POWER TO MAKE AN ANATOMICAL GIFT, AUTHORIZE AN AUTOPSY, OR DISPOSE OF REMAINS, YOU MAY DO SO IN THE FOLLOWING PARAGRAPHS.

2. The powers granted above shall not include the following powers or shall be subject to the following rules or limitations (here you may include any specific limitations you deem appropriate, such as your own definition of when life-sustaining or death-delaying measures should be withheld; a direction to continue nourishment and fluids or other life-sustaining or death-delaying treatment in all events, or instructions to refuse any specific types of treatment that are inconsistent with your religious beliefs or unacceptable to you for any other reasons, such as blood transfusion, electroconvulsive therapy, or amputation):

THE SUBJECT OF LIFE-SUSTAINING OR DEATH-DELAYING TREATMENT IS OF PARTICULAR IMPORTANCE. FOR YOUR CONVENIENCE IN DEALING WITH THAT SUBJECT, SOME GENERAL STATEMENTS CONCERNING THE WITHHOLDING OR REMOVAL OF LIFE-SUSTAINING OR DEATH-DELAYING TREATMENT ARE SET FORTH BELOW. IF YOU AGREE WITH ONE OF THESE STATEMENTS, YOU MAY INITIAL THAT STATEMENT, BUT DO NOT INITIAL MORE THAN ONE.

I do not want my life to be prolonged, nor do I want life-sustaining or death delaying treatment to be provided or continued if my agent believes the burdens of the treatment outweigh the expected benefits. I want my agent to consider the relief of suffering, the expense involved and the quality as well as the possible extension of my life in making decisions concerning life-sustaining or death-delaying treatment.

Initialed:

I want my life to be prolonged and I want life-sustaining or death-delaying treatment to be provided or continued unless I am in a coma, including a persistent vegetative state, which my attending physician believes to be irreversible, in accordance with reasonable medical standards at the time of reference. If and when I have suffered an irreversible coma, I want life-sustaining or death-delaying treatment to be withheld or discontinued.

Initialed:

I want my life to be prolonged to the greatest extent possible without regard to my condition, the chances I have for recovery or the cost of the procedures.

Initialed:

THIS POWER OF ATTORNEY MAY BE AMENDED OR REVOKED BY YOU AT ANY TIME AND IN ANY MANNER WHILE YOU ARE ABLE TO DO SO. IN THE ABSENCE OF AN AMENDMENT OR REVOCATION, THE AUTHORITY GRANTED IN THIS POWER OF ATTORNEY WILL BECOME EFFECTIVE AT THE TIME THIS POWER IS SIGNED AND WILL CONTINUE UNTIL YOUR DEATH AND WILL CONTINUE BEYOND YOUR DEATH IF ANATOMICAL GIFT, AUTOPSY, OR DISPOSITION OF REMAINS IS AUTHORIZED, UNLESS A LIMITATION ON THE BEGINNING DATE OR DURATION IS MADE BY INITIATING AND COMPLETING EITHER OR BOTH OF THE FOLLOWING:

3. ( ) This power of attorney shall become effective on

(Insert a future date or event during your lifetime, such as court

determination of your disability, incapacity, or incompetency, when you want this power to take effect)

4. ( ) This power of attorney shall terminate on ___________________________________ (Insert future date or event, such as court determination of your disability, incapacity, or incompetence, when you want this power to terminate prior to your death)

IF YOU WISH TO NAME SUCCESSOR AGENTS, INSERT THE NAMES AND ADDRESSES OF SUCH SUCCESSORS IN THE FOLLOWING PARAGRAPH.


IDAHO

IDAHO CODE SECTION 39-4505

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

1. Designation of Health Care Agent. I, _________________________________________ insert your name

__________________________________________________________________________ and address

do hereby designate and appoint __________________________________________________ ___________________________________________________________________________ [Insert name, address and telephone number of one individual only as your agent to make health care decisions for you. None of the following may be designated as your agent: (1) your treating health care provider, (2) a nonrelative employee of your treating health care provider, (3) an operator of a community care facility, (4) a nonrelative employee of an operator of a community care facility.]

as my attorney in fact (agent) to make health care decisions for me as authorized in this document. For the purposes of this document, "health care decision" means consent, refusal of consent, or withdrawal of consent to any care, treatment, service, or procedure to maintain, diagnose, or treat an individual's physical condition.

2. Creation of Durable Power of Attorney For Health Care. By this document I( intended to create a durable power of attorney for heath care. This power of attorney shall not be affected by my subsequent incapacity.

3. General Statements of Authority Granted. Subject to any limitations in this document, I hereby grant to my agent full power and authority to make health care decisions for me to the same extent that I could make such decisions for myself if I had the capacity to do so. In exercising this authority, my agent shall make health care decisions that are consistent with my desires as stated in this document or otherwise made known to my agent, including, but not limited to, my desires concerning obtaining or refusing or withdrawing life-prolonging care, treatment, services and procedures.

[If you want to limit the authority of your agent to make health care decisions for you, you can state the limitations in paragraph 4 ("Statement of Desires, Special Provisions, and Limitations") below. You can indicate your desires by including a statement of your desires in the same paragraph.]

4. Statement of Desires, Special Provisions and Limitations.

[Your agent must make health care decisions that are consistent with your known desires. You can, but are not required to, state your desires in the space provided below. You should consider whether you want to include a statement of your desires concerning life-prolonging care, treatment, services and procedures. You can also include a statement of your desires concerning other matters relating to your health care. You can also make your desires known to your agent by discussing your desires with your agent or by some other means. If there are any types of treatment that you did not want to be used, you should state them in the space below. If you want to limit in any other way the authority given your agent by this document, you should state the limits in the space below. If you do not state any limits, your agent will have broad powers to make health care decisions for you, except to the extent that there are limits provided by law.]

In exercising the authority under this durable power of attorney for health care, my agent shall act consistently with my desires as stated below and is subject to the special provisions and limitations stated in the living will. Additional statement of desires, special provisions and limitations:

[You may attach additional pages if you need more space to complete the statement. If you attach additional pages, you must date and sign each of the additional; pages at the same time you date and sign this document.]


STATUTORY SHORT FORM POWER OF ATTORNEY FOR HEALTH CARE

(NOTICE: THE PURPOSE OF THIS POWER OF ATTORNEY IS TO GIVE THE PERSON YOU DESIGNATE (YOUR "AGENT") BROAD POWERS TO MAKE HEALTH CARE DECISIONS FOR YOU, INCLUDING POWER TO REQUIRE, CONSENT TO OR WITHDRAW ANY TYPE OF PERSONAL CARE OR MEDICAL TREATMENT FOR ANY PHYSICAL OR MENTAL CONDITION AND TO ADMIT YOU TO OR DISCHARGE YOU FROM ANY HOSPITAL, HOME OR OTHER INSTITUTIONS. THIS FORM DOES NOT IMPOSE A DUTY ON YOUR AGENT TO EXERCISE GRANTED POWERS; BUT WHEN A POWER IS EXERCISED, YOUR AGENT WILL HAVE TO USE DUE CARE TO ACT FOR YOUR BENEFIT AND IN ACCORDANCE WITH THIS FORM. A COURT CAN TAKE AWAY THE POWERS OF YOUR AGENT IF IT FINDS THE AGENT IS NOT ACTING PROPERLY. YOU MAY NAME SUCCESSOR AGENTS UNDER THIS FORM BUT NOT CO-AGENTS, AND NO HEALTH CARE PROVIDER MAY BE NAMED. UNLESS YOU EXPRESSLY LIMIT THE DURATION OF THIS POWER IN THE MANNER PROVIDED BELOW, UNTIL YOU REVOKE THIS POWER OR A COURT ACTING ON YOUR BEHALF TERMINATES IT, YOUR AGENT MAY EXERCISE THE POWERS GIVEN HERE THROUGHOUT YOUR LIFETIME, EVEN AFTER YOU ARE DISABLED, THE POWERS YOU GIVE YOUR AGENT, YOUR RIGHT TO REVOKE THOSE POWERS AND PENALTIES FOR VIOLATING THE LAW ARE EXPLAINED MORE FULLY IN SECTIONS 4-5,4-6,4-9 AND 4-10(b) OF THE ILLINOIS "POWERS OF ATTORNEY FOR HEALTH CARE LAW" OF WHICH THIS FORM IS A PART. THAT LAW EXPRESSLY PERMITS THE USE OF ANY DIFFERENT FORM OF POWER OF ATTORNEY YOU MAY DESIRE. IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU.)

POWER OF ATTORNEY MADE THIS DAY OF MONTH ________ AND YEAR ________

1. I ______________________________________________________________________ insert name and address of principal

hereby appoint: _______________________________________________________________ ____________________________________________________________________________ insert name and address of agent

as my attorney-in-fact (my "agent") to act for me and in my name (in any way I could act in person) to make any and all decisions for me concerning my personal care, medical treatment, hospitalization and health care and to require, withhold or withdraw any type of medical treatment or procedure, even though my death may ensue. My agent shall have the same access to my medical records that I have including the right to disclose the contents to others. My agent shall also have full power to make a disposition of any part or all of my body for medical purposes, authorize an autopsy and direct the disposition of my remains.

(THE ABOVE GRANT OF POWER IS INTENDED TO BE AS BROAD AS POSSIBLE SO THAT YOUR AGENT WILL HAVE AUTHORITY TO MAKE ANY DECISION YOU COULD MAKE TO OBTAIN OR TERMINATE ANY TYPE OF HEALTH CARE, INCLUDING WITHDRAWAL OF FOOD AND WATER AND OTHER LIFE-SUSTAINING MEASURES, IF YOUR AGENT BELIEVES SUCH ACTION WOULD BE CONSISTENT WITH YOUR INTENT AND DESIRES, IF YOU WISH TO LIMIT THE SCOPE OF YOUR AGENT'S POWERS OR PRESCRIBE SPECIAL RULES OR LIMIT THE POWER TO MAKE AN ANATOMICAL GIFT, AUTHORIZE AUTOPSY OR DISPOSE OF REMAINS, YOU MAY DO SO IN THE FOLLOWING PARAGRAPHS.)

2. The powers granted above shall not include the following powers or shall be subject to the following rules or limitations (here you may include any specific limitations you deem appropriate, such as: your own definition of when life-sustaining treatment in all events, or instructions to refuse any specific types of treatment that are inconsistent with your religious beliefs or unacceptable to you for any reason, such as blood transfusion, electro-convulsive therapy, amputation, psychosurgery, voluntary admission to a mental institutions, etc.):

(THE SUBJECT OF LIFE-SUSTAINING TREATMENT IS OF PARTICULAR IMPORTANCE, FOR YOUR CONVENIENCE IN DEALING WITH THAT SUBJECT, SOME GENERAL STATEMENTS CONCERNING THE WITHHOLDING OR REMOVAL OF LIFE-SUSTAINING TREATMENT ARE SET FORTH BELOW. IF YOU AGREE WITH ONE OF THESE STATEMENTS, YOU MAY INITIAL THAT STATEMENT; BUT DO NOT INITIAL MORE THAN ONE):

I do not want my life to be prolonged, nor do I want life-sustaining treatment to be provided or continued if my agent believes the burdens of the treatment outweigh the expected benefits. I want my agent to consider the relief of suffering, the expense involved and the quality as well as the possible extension of my life in making decisions concerning life-sustaining treatment.

Initialed:

I want my life to be prolonged and I want life-sustaining treatment to be provided or continued unless I am in a coma which my attending physician believes to be irreversible, in accordance with reasonable medical standards at the time of reference. If and when I have suffered irreversible coma, I want life-sustaining treatment to be withheld or discontinued.

Initialed: I want my life to be prolonged to the greatest extent possible without regard to my condition, the chances I have for recovery or the cost of the procedures.

Initialed:

(THIS POWER OF ATTORNEY MAY BE AMENDED OR REVOKED BY YOU AT ANY TIME AND IN ANY MANNER WHILE YOU HAVE THE CAPACITY TO DO SO. ABSENT AMENDMENT OR REVOCATION, THE AUTHORITY GRANTED IN THIS POWER OF ATTORNEY WILL BECOME EFFECTIVE AT THE TIME THIS POWER IS SIGNED AND WILL CONTINUE UNTIL YOUR DEATH, AND BEYOND IF ANATOMICAL GIFT, AUTOPSY OR DISPOSITION OF REMAINS IS AUTHORIZED, UNLESS A LIMITATION ON THE BEGINNING DATE OR DURATION IS MADE BY INITIALING AND COMPLETING EITHER OR BOTH OF THE FOLLOWING):


KANSAS

KANSAS STATUTES ANNOTATED 58-632

DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS

GENERAL STATEMENT OF AUTHORITY GRANTED

I, _____________________________________________________________ , designate and appoint

NAME: _________________________________________________________________

ADDRESS: ______________________________________________________________

TELEPHONE NUMBER: ___________________________________________________

to be my agent for health care decisions and pursuant to the language stated below, on my behalf to:

(1) consent, refuse consent, or withdraw consent to any care, treatment, service or procedure to treat a physical or mental condition, and to make decisions about organ donation, autopsy, and disposition of the body;

(2) make all necessary arrangements at any hospital, psychiatric hospital or psychiatric facility, hospice, nursing home or similar institution, to employ or discharge health care personnel to include physicians, psychiatrists, psychologists, dentists, nurses, therapists or any other person who is licensed, certified or otherwise authorized or permitted by the laws of this state to administer health care as the agent shall deem necessary for my physical, mental and emotional; well being, and

(3) request, receive and review any information, verbal or written, regarding my personal affairs or physical or mental health including medical and hospital records and to execute any releases of other documents that may be required in order to obtain such information.

In exercising the grant of authority set forth above my agent for health care decisions shall:

(Here may be inserted any special instructions or statements of the principal's desires to be followed by the agents in exercising the authority granted.)

LIMITATIONS OF AUTHORITY

(1) The powers of the agent herein shall be limited to the extent set out in writing in this durable power of attorney for health care decisions, and shall not include the power to revoke or invalidate any previously existing declaration made in accordance with the Natural Death Act.

(2) The agent shall be prohibited from authorizing consent for the following items:

(3) This durable power of attorney for health care decisions shall be subject to the additional following limitations:

EFFECTIVE TIME

This power of attorney for health care decisions shall become effective (immediately and shall not be affected by my subsequent disability or incapacity or upon the occurrence of my disability or incapacity).

REVOCATION

Any durable power of attorney for health care decisions I have previously made is hereby revoked.

(This durable power of attorney for health care decisions shall be revoked by an instrument in writing executed, witnessed or acknowledged in the same manner as required herein, or set out another manner of revocation, if desired.)


NEW MEXICO

NEW MEXICO CODE 45-5-602

STATUTORY POWER OF ATTORNEY

NOTICE: THIS DOCUMENT IS AN IMPORTANT DOCUMENT. THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. THEY ARE EXPLAINED IN THE UNIFORM STATUTORY FORM POWER OF ATTORNEY ACT, CHAPTER 45, ARTICLE 5, PART 6 NMSA 1978. IF YOU HAVE ANY QUESTIONS ABOUT THESE POWERS, YOU SHOULD ASK A LAWYER TO EXPLAIN THEM TO YOU. THIS FORM DOES NOT PROHIBIT THE USE OF ANY OTHER FORM. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO DO SO.

I, _________________________________________________________________________ (NAME)

reside at __________________________________________________________________ (ADDRESS)

New Mexico. I appoint _______________________________________________________ __________________________________________________________________________ __________________________________________________________________________ (NAMES(S) AND ADDRESS(ES))

to serve as my attorney(s)-in-fact.

If any attorney-in-fact appointed above is unable to serve, then I appoint _________________________________________________________________________to serve as successor attorney-in-fact in place of the person who is unable to serve.

This power of attorney shall not be affected by my incapacity but will terminate upon my death unless I have revoked it prior to my death. I intended by this power of attorney to avoid a court-supervised guardianship or conservatorship.

Should my attempt be defeated, I ask that my agent be appointed as guardian or conservator of my person or estate.

STRIKE THROUGH THE SENTENCE ABOVE IF YOU DO NOT WANT TO NOMINATE YOUR AGENT AS YOUR GUARDIAN OR CONSERVATOR.

______________________________________________________________

CHECK AND INITIAL THE FOLLOWING PARAGRAPH ONLY IF YOU WANT YOUR ATTORNEY(S)-IN-FACT TO BE ABLE TO ACT ALONE AND INDEPENDENTLY OR EACH OTHER. IF YOU DO NOT CHECK AND INITIAL; THE FOLLOWING PARAGRAPH AND MORE THAN ONE PERSON IS NAMED TO ACT ON YOUR BEHALF THEN THEY MUST ACT JOINTLY.

If more than one person is appointed to serve ( ) serve as my attorney-in-fact then they may act severally, alone and independently of each other.

My attorney(s)-in-fact shall have the power to act in my name, place, and stead in any way which I myself could do with respect to the following matters to the extent permitted by law:

INITIAL IN THE BOX IN FRONT OF EACH AUTHORIZATION WHICH YOU DESIRE TO GIVE TO YOUR ATTORNEY(S)-IN-FACT. YOUR ATTORNEY(S)-IN-FACT SHALL BE AUTHORIZED TO ENGAGE ONLY IN THOSE ACTIVITIES WHICH ARE INITIALED.

INITIAL

( ) 1. real estate transactions

( ) 2. stock and bond transactions

( ) 3. commodity and option transactions

( ) 4. tangible personal property transactions.

( ) 5. banking and other financial institution transactions.

( ) 6. business operating transactions.

( ) 7. insurance and annuity transactions.

( ) 8. estate, trust and other beneficiary transactions.

( ) 9. claims and litigations.

( ) 10. personal and family maintenance.

( ) 11. benefits from social security. medicare, medicaid or other government programs or civil or military service.

( ) 12. retirement plan transactions.

( ) 13. tax matters. including any transactions with the Internal Revenue Service.

( ) 14. decisions regarding lifesaving and life prolonging medical treatment.

( ) 15. decisions relating to medical treatment, surgical

treatment, nursing care, medication, hospitalization,

institutionalization in a nursing home or other facility and home health care.

( ) 16. transfer of property or income as a gift to the principal's spouse for the purpose of qualifying the

principal for governmental medical assistance.

( ) 17. ALL OF THE ABOVE POWERS, INCLUDING FINANCIAL AND HEALTH

CARE DECISIONS. IF YOU INITIAL THE BOX IN FRONT OF LINE

17, YOU NEED NOT INITIAL ANY OTHER LINES.

SPECIAL INSTRUCTIONS:

ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS LIMITING OR EXTENDING THE POWERS YOU HAVE GRANTED TO YOUR AGENT.


NEVADA

NRS SECTION 449.830

DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS

WARNING TO PERSON EXECUTING THIS DOCUMENT

THIS IS AN IMPORTANT LEGAL DOCUMENT. IT CREATES A DURABLE POWER OF ATTORNEY FOR HEALTH CARE. BEFORE EXECUTING THIS DOCUMENT, YOU SHOW KNOW THESE FACTS:

  1. THIS DOCUMENT GIVES THE PERSON YOU DESIGNATE AS YOUR ATTORNEY-IN-FACT THE POWER TO MAKE HEALTH CARE DECISIONS FOR YOU. THIS POWER IS SUBJECT TO ANY LIMITATIONS OR STATEMENT OF YOUR DESIRES THAT YOU INCLUDE IN THIS DOCUMENT. THE POWER TO MAKE HEALTH CARE DECISIONS FOR YOU MAY INCLUDE CONSENT, REFUSAL OF CONSENT, OR WITHDRAWAL OF CONSENT TO ANY CARE, TREATMENT, SERVICE, OR PROCEDURE TO MAINTAIN, DIAGNOSE, OR TREAT A PHYSICAL OR MENTAL CONDITION. YOU MAY STATE IN THIS DOCUMENT ANY TYPES OF TREATMENT OR PLACEMENTS THAT YOU DO NOT DESIRE.
  2. THE PERSON YOU DESIGNATE IN THIS DOCUMENT HAS A DUTY TO ACT CONSISTENT WITH YOUR DESIRES AS STATED IN THIS DOCUMENT OR OTHERWISE MADE KNOWN OR, IF YOUR DESIRES ARE UNKNOWN, TO ACT IN YOUR BEST INTERESTS.
  3. EXCEPT AS YOU OTHERWISE SPECIFY IN THIS DOCUMENT, THE POWER OF THE PERSON YOU DESIGNATE TO MAKE HEALTH CARE DECISIONS FOR YOU MAY INCLUDE THE POWER TO CONSENT TO YOUR DOCTOR NOT GIVING TREATMENT OR STOPPING TREATMENT WHICH WOULD KEEP YOU ALIVE.
  4. UNLESS YOU SPECIFY A SHORTER PERIOD IN THIS DOCUMENT, THIS POWER WILL EXIST INDEFINITELY FROM THE DATE YOU EXECUTE THIS DOCUMENT AND, IF YOU ARE UNABLE TO MAKE HEALTH CARE DECISIONS FOR YOURSELF, THIS POWER WILL CONTINUE TO EXIST UNTIL THE TIME WHEN YOU BECOME ABLE TO MAKE HEALTH CARE DECISIONS FOR YOURSELF.
  5. NOTWITHSTANDING THIS DOCUMENT, YOU HAVE THE RIGHT TO MAKE MEDICAL AND OTHER HEALTH CARE DECISIONS FOR YOURSELF SO LONG AS YOU CAN GIVE INFORMED CONSENT WITH RESPECT TO THE PARTICULAR DECISION. IN ADDITION, NO TREATMENT MAY BE GIVEN TO YOU OVER YOUR OBJECTION, AND HEALTH CARE NECESSARY TO KEEP YOU ALIVE MAY NOT BE STOPPED IF YOU OBJECT.
  6. YOU HAVE THE RIGHT TO REVOKE THE APPOINTMENT OF THE PERSON DESIGNATED IN THIS DOCUMENT TO MAKE HEALTH CARE DECISIONS FOR YOU BY NOTIFYING THAT PERSON OF THE REVOCATION ORALLY OR IN WRITING.
  7. YOU HAVE THE RIGHT TO REVOKE THE AUTHORITY GRANTED TO THE PERSON DESIGNATED IN THIS DOCUMENT TO MAKE HEALTH CARE

DECISIONS FOR YOU BY NOTIFYING THE TREATING PHYSICIAN, HOSPITAL, OR OTHER PROVIDER OF HEALTH CARE ORALLY OR IN WRITING.

8. THE PERSON DESIGNATED IN THIS DOCUMENT TO MAKE HEALTH CARE DECISIONS FOR YOU HAS THE RIGHT TO EXAMINE YOUR MEDICAL RECORDS AND TO CONSENT TO THEIR DISCLOSURE UNLESS YOU LIMIT THIS RIGHT IN THIS DOCUMENT.

9. THIS DOCUMENT REVOKES ANY PRIOR DURABLE POWER OF ATTORNEY FOR HEALTH CARE.

10. IF THERE IS ANYTHING IN THIS DOCUMENT THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU.

1. DESIGNATION OF HEALTH CARE AGENT.

I, ________________________________________________________________________ (INSERT YOUR NAME)

do hereby designate and appoint:

NAME: ________________________________________________________________

ADDRESS: _____________________________________________________________

TELEPHONE: __________________________________________________________

as my attorney-in-fact to make health care decisions for me as authorized in this document.

(Insert the name and address of the person you wish to designate as your attorney-in-fact to make health care decisions for you. Unless the person is also your spouse, legal guardian or the person most closely related to you by blood, none of the following may be designated as your attorney-in-fact: (1) your treating provider of health care, (2) an employee of your treating provider of health care, (3) an operator of a health care facility, or (4) an employee of an operator of a health care facility.

2. CREATIONS OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE

By this document I intend to create a durable power of attorney by appointing the person designated above to make health care decisions for me. This power of attorney shall not be affected by my subsequent incapacity.

3. GENERAL STATEMENT OF AUTHORITY GRANTED.

In the event that I am incapable of giving informed consent with respect to health care decisions, I hereby grant to the attorney-in-fact named above full power and authority to make health care decisions for me before, or after my death, including: consent, refusal of consent, or withdrawal of consent to any care, treatment, service, or procedure to maintain, diagnose, or treat a physical or mental condition, subject only to the limitations and special provisions, if any, set forth in paragraph 4 or 6.

4. SPECIAL PROVISIONS AND LIMITATIONS

(Your attorney-in-fact is not permitted to consent to any of the following commitment to or placement in a mental health treatment facility, convulsive treatment, psychosurgery, sterilization, or abortion. If there are any other types of treatment or placement that you do not want your attorney-in-fact's authority to give consent for or other restrictions you wish to place on his or her attorney-in-fact's authority, you should list them in the space below. If you do not write any limitations, your attorney-in-fact will have the broad powers to make health care decisions on your behalf which are set forth in paragraph 3, except to the extent that there are limits provided by law.)

In exercising the authority under this durable power of attorney for health care, the authority of my attorney-in-fact is subject to the following special provisions and limitations:

5. DURATION.

I understand that this power of attorney will exist indefinitely from the date I execute this document unless I establish a shorter time, If I am unable to make health care decisions for myself when this power of attorney expires, the authority I have granted my attorney-in-fact will continue to exist until the time when I become able to make health care decisions for myself.

(IF APPLICABLE)

I wish to have this power of attorney end on the following date: ______________________________


NEW HAMPSHIRE

Section 137-J:14

INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY FOR HEALTH CARE

THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT YOU SHOULD KNOW THESE IMPORTANT FACTS:

Except to the extent you state otherwise, this document gives the person you name as your agent the authority to make any and all health care decisions for you when you are no longer capable of making them yourself. "Health care" means any treatment, service or procedure to maintain, diagnose or treat your physical or mental condition. Your agent, therefore, can have the power to make a broad range of health care decisions for you. Your agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment. Your agent cannot consent or direct any of the following: commitment to a state institution, sterilization, or termination of treatment if you are pregnant and if the withdrawal of that treatment is deemed likely to terminate the pregnancy unless the failure to withhold the treatment will be physically harmful to you or prolong severe pain which cannot be alleviated by medication.

You may state in this document any treatment you do not desire, except as stated above, or treatment you want to be sure you receive. Your agent's authority will begin when your doctor certifies that you lack the capacity to make health care decisions. If for moral or religious reasons you do not wish to be treated by a doctor or examined by a doctor for the certification that you lack capacity, you must say so in the document and name a person to be able to certify your lack of capacity. That person may not be your agent or alternate agent or any person ineligible to be your agent. You may attach additional pages if you need more space to complete your statement.

If you want to give your agent authority to withhold or withdraw the artificial providing of nutrition and fluids, your document must state so. Otherwise, your agent will not be able to direct that. Under no circumstances will your agent be able to direct the withholding of food or drink for you to eat and drink normally.

Your agent will be obligated to follow your instructions when making decisions on your behalf. Unless you state otherwise, your agent will have the same authority to make decisions about your health care as you would have had if made consistent with state law.

It is important that you discuss this document with your physician or other health care providers before you sign it to make sure that you understand the nature and range of decisions which may be made on your behalf. If you do not have a physician, you should talk with someone else who is knowledgeable about these issues and can answer your questions. You do not need a lawyer';s assistance to complete this document, but if there is anything in this document that you do not understand, you should ask a lawyer to explain it to you.

The person you appoint as agent should be someone you know and trust and must be at least 18 years old. If you appoint your health or residential care provider (e.g. your physician, or an employee of a home health agency, hospital, nursing home, or residential care home, other than a relative), that person will have to choose between acting as your agent or as your health or residential care provider; the law does not permit a person to do both at the same time.

You should inform the person you appoint that you want him or her to be your health care agent. You should discuss the document with your agent and your physician and give each a signed copy. You should indicate on the document itself the people and institutions who will have signed copies. Your agent will not be liable for health care decisions made in good faith on your behalf.

Even after you have signed this document, you have the right to make health care decisions for yourself as along as you are able to do so, and treatment cannot be given to you or stopped over your objection. You have the right to revoke the authority granted to your agent by informing him or her or your health care provider orally or in writing.

This document may not be changed or modified. If you want to make changes in the document you must make an entirely new one.

You should consider designing an alternate agent in the event that your agent is unwilling, unable, unavailable, or ineligible to act as your agent. Any alternate agent you designate will have the same authority to make health care decisions for you.

THIS POWER OF ATTORNEY WILL NOT BE VALID UNLESS IT IS SIGNED IN THE PRESENCE OF TWO (2) OR MORE QUALIFIED WITNESSES WHO MUST BOTH BE PRESENT WHEN YOU SIGN AND ACKNOWLEDGE YOUR SIGNATURE. THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:

ONLY ONE OF THE TWO WITNESSES MAY BE YOUR HEALTH OR RESIDENTIAL CARE PROVIDER OR ONE OF THEIR EMPLOYEES.

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

I, ____________________________________________________________________ , hereby appoint hereby appoint _____________________________________________________________________ of __________________________________________________________________________________as my agent to make any and all health care decisions for me, except to the extent I state otherwise in this document or as prohibited by law. This durable power of attorney for health care shall take effect in the event I become unable to make my own health care decisions.

STATEMENT OF DESIRES, SPECIAL PROVISIONS, AND LIMITATIONS REGARDING HEALTH CARE DECISIONS

For your convenience in expressing your wishes, some general statements concerning the withholding or removal of life-sustaining treatment are set forth blow. (Life-sustaining treatment is defined as procedures without which a person would die, such as but not limited to the following: cardio-pulmonary resuscitation, mechanical respiration, kidney dialysis or the use of other external mechanical and technological devices, drugs to maintain blood pressure, blood transfusions, and antibiotics.) There is also a section which allows you to set forth specific directions for these or other matters. If you wish you may indicate your agreement or disagreement with any of the following statements and give you agent power to act in those specific circumstances.

  1. If I become permanently incompetent to make health care decisions and if I am also suffering from a terminal illness, I authorize my agent to direct that life-sustaining treatment be discontinued. (YES) (NO) (Circle your choice and initial beneath it.)
  2. Whether terminally ill or not, if I become permanently unconscious I authorize my agent to direct that life-sustaining treatment be discontinued. (YES) (NO) (Circle your choice and initial beneath it.)
  3. I realize that situations could arise in which the only way to allow me to die would be to discontinue artificial feeding (artificial nutrition and hydration). In carrying out any instructions I have given above in #1 or #2 or any instructions I may write in #4 below, I authorize my agent to direct that (circle your choice (a) or (b) and initial beside it):

(a) artificial nutrition and hydration not to be started or, if started, be discontinued, or

(b) although all other forms of life-sustaining treatment be withdrawn, artificial nutrition and hydration continue to be given to me. (If you fail to complete item 3, your agent will not have the power to direct the withdrawal of artificial nutrition and hydration.)

4. Here you may include any specific desires or limitations you deem appropriate, such as when or what life-sustaining treatment you would want used or withheld, or instructions about refusing any specific types of treatment that are inconsistent with your religious beliefs or unacceptable to you for any reason. You may leave this question blank if you desire.

(attach additional pages as necessary)

In the event the person I appoint above is unable, unwilling or unavailable, or ineligible to act as my health care agent, I hereby appoint _________________________________________________________________of _____________________________________________________________________ as my alternate agent. I hereby acknowledge that I have ben provided with a disclosure statement explaining the effect of this document. I have read and understand the information contained in the disclosure statement.


NEW YORK HEALTH PROXY

PUBLIC HEALTH LAW SECTION 2981

HEALTH PROXY:

I, _________________________________________________________________________ NAME OF PRINCIPAL

hereby appoint ________________________________________________________________ ___________________________________________________________________________ NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT

as my health care agent to make any and all health care decisions for me, except to the extent I state otherwise.

This health care proxy shall take effect in the event I become unable to make my own health care decisions.

NOTE: Although not necessary, and neither encouraged nor discouraged, you may wish to state instructions or wishes, and limit your agent's authority. Unless your agent knows your wishes about artificial nutrition and hydration, your agent will not have authority to decide about artificial nutrition and hydration. If you choose to state instructions, wishes, or limits, please do so below:

I direct my agent to make health care decisions in accordance with my wishes and instructions as stated above or as otherwise known to him or her. I also direct my agent to abide by any limitations on his or her authority as stated above or as otherwise known to him or her.

In the event the person I appoint is unable, unwilling or unavailable to act as my health care agent, I hereby appoint

_______________________________________________________________________________ _______________________________________________________________________________ NAME, ADDRESS AND TELEPHONE NUMBER OF ALTERNATE AGENT

as my health care agent.


OREGON

OREGON REVISED STATUTES SECTION 127.531

ADVANCE DIRECTIVE

YOU DO NOT HAVE TO FILL OUT AND SIGN THIS FORM

PART A: IMPORTANT INFORMATION ABOUT THIS ADVANCE DIRECTIVE

This is an important legal document. It can control critical decisions about your health care. Before signing, consider these important facts:

FACTS ABOUT PART B (APPOINTING A HEALTH CARE REPRESENTATIVE

You have the right to name a person to direct your health care when you cannot do so. This person is called your "health care representative". You can do this by using Part B of this form. Your representative must accept on Part E of this form.

You can write in this document any restrictions you want on how your representative will make decisions for you. Your representative must follow your desires as stated in this document or otherwise made known. If your desires are unknown., your representative must try to act in your best interest. Your representative may resign at any time.

FACTS ABOUT PART C (GIVING HEALTH CARE INSTRUCTIONS)

You also have the right to give instructions for health care providers to follow if you become unable to direct your care. You can do this by using Part C of this form.

FACTS ABOUT COMPLETING THIS FORM

This form is valid only if you sign it voluntarily and when you are of sound mind. If you do not want an advance directive, you do not to sign this form.

Unless you have limited the duration of this advance directive, mit will not expire, If you have set an expiration date, and you become unable to direct your health care before that date, this advance directive will not expire until you are able to make those decisions again.

You may revoke this document at any time. To do so, notify your representative and your health care provider of the revocation.

Despite this document, you have the right to decide your own health care as long as you are able to do so.

If there is anything in this document that you do not understand, ask a lawyer to explain it to you.

You may sign PART B, PART C, or both parts. You may cross out words that don't express your wishes or add words that better express your wishes. Witnesses must sign PART D.

Print your NAME, BIRTHDATE AND ADDRESS here:

________________________________________________________________________________ (NAME)

_________________________________________________________________________________ (BIRTHDATE)

_________________________________________________________________________________ (ADDRESS)

Unless revoked or suspended, this advance directive will continue for"

INITIAL ONE:

My entire life

Other period ( Years)

PART B: APPOINTMENT OF HEALTH CARE REPRESENTATIVE

I hereby appoint __________________________________________as my health care representative. My representative's address is _______________________________________________________________ and telephone number is __________________________________.

I hereby appoint ___________________________________as my alternate health care representative. My alternate's address is ______________________________________________________________and telephone number is _____________________.

I authorize my representative ( or alternative) to direct my health care when I can't do so.

NOTE: YOU MAY NOT APPOINT YOUR DOCTOR, AN EMPLOYEE OF YOUR DOCTOR, OR AN OWNER, OPERATOR OR EMPLOYEE OF YOUR HEALTH CARE FACILITY, UNLESS THAT PERSON IS RELATED TO YOU BY BLOOD, MARRIAGE OR ADOPTION OR THAT PERSON WAS APPOINTED BEFORE YOUR ADMISSION INTO THE HEALTH CARE FACILITY.

1. LIMITS

Special Conditions or Instructions: _____________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________

INITIAL IF THIS APPLIES

I have executed a Health Care Instruction or Directiveto Physicians. My representative is to honor it.

2. LIFE SUPPORT

"Life support" refers to any medical means for maintaining life, including procedures, devices and medications. If you refuse life support, you will get routine measures to keep you clean and comfortable.

INITIAL IF THIS APPLIES

My representative MAY decide about life support for me.

(If you don't initial this space, then your representative MAY NOT decide about life support.)

3. TUBE FEEDING

One sort of life support is food and water supplied artificially by medical device, known as tube feeding.

INITIAL IF THIS APPLIES

My representative MAY decide about tube feeding for me. (If you don't initial this space, then your representative MAY NOT decide about tube feeding.

DATE:

SIGN HERE TO APPOINT A HEALTH CARE REPRESENTATIVE

(SIGNATURE OF PERSON MAKING APPOINTMENT)

PART C. HEALTH CARE INSTRUCTIONS


SOUTH CAROLINA

CODE OF LAW OF SOUTH CAROLINA SECTION 62-5-504

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

INFORMATION ABOUT THIS DOCUMENT

THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:

  1. THIS DOCUMENT GIVES THE PERSON YOU NAME AS YOUR AGENT THE POWER TO MAKE HEALTH CARE DECISIONS FOR YOU IF YOU CANNOT MAKE THE DECISION FOR YOURSELF. THIS POWER INCLUDES THE POWER TO MAKE DECISIONS ABOUT LIFE-SUSTAINING TREATMENT UNLESS YOU STATE OTHERWISE. YOUR AGENT WILL HAVE THE SAME AUTHORITY TO MAKE DECISIONS ABOUT YOUR HEALTH CARE AS YOU WOULD HAVE.
  2. THIS POWER IS SUBJECT TO ANY LIMITATIONS OR STATEMENT OF YOUR DESIRES THAT YOU INCLUDE IN THIS DOCUMENT. YOU MAY STATE IN THIS DOCUMENT ANY TREATMENT YOU DO NOT DESIRE OR TREATMENT YOU WANT TO BE SURE YOU RECEIVE.YOUR AGENT WILL BE OBLIGATED TO FOLLOW YOUR INSTRUCTIONS WHEN MAKING DECISIONS ON YOUR BEHALF. YOU MAY ATTACH ADDITIONAL PAGES IF YOU NEED MORE SPACE TO COMPLETE THE STATEMENT.
  3. AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU HAVE THE RIGHT TO MAKE HEALTH CARE DECISION FOR YOURSELF IF YOU ARE MENTALLY COMPETENT TO DO SO. AFTER YOU HAVE SIGNED THE DOCUMENT, NO TREATMENT MAY BE GIVEN TO YOU OR STOPPED OVER YOUR OBJECTION IF YOU ARE MENTALLY COMPETENT TO MAKE THAT DECISION.
  4. YOU HAVE THE RIGHT TO REVOKE THIS DOCUMENT AND TERMINATE YOUR AGENT'S AUTHORITY BY INFORMING EITHER YOUR AGENT OR HEALTH CARE PROVIDER ORALLY OR IN WRITING.
  5. IF THERE IS ANYTHING IN THIS DOCUMENT THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A SOCIAL WORKER, LAWYER OR OTHER PERSON TO EXPLAIN IT TO YOU.
  6. THIS POWER OF ATTORNEY WILL NOT BE VALID UNLESS TWO PERSONS SIGN AS WITNESSES. EACH OF THESE PERSONS MUST EITHER WITNESS YOUR SIGNING OF THE POWER OF ATTORNEY OR WITNESS YOUR ACKNOWLEDGMENT THAT THE SIGNATURE ON THE POWER OF ATTORNEY IS YOURS.

THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:

(A) YOUR SPOUSE, YOUR CHILDREN, GRANDCHILDREN, AND

OTHER LINEAL DESCENDANTS, YOUR PARENTS, GRANDPARENTS, AND OTHER LINEAL ANCESTORS, YOUR SIBLINGS AND THEIR LINEAL DESCENDANTS, OR A SPOUSE OF ANY OF THESE PERSONS.

(B) A PERSON WHO IS DIRECTLY FINANCIALLY RESPONSIBLE FOR YOUR MEDICAL CARE.

(C) A PERSON WHO IS NAMED IN YOUR WILL OR, IF YOU HAVE NO WILL, WHO WOULD INHERIT YOUR PROPERTY BY INTESTATE SUCCESSION.

(D) A BENEFICIARY OF A LIFE INSURANCE POLICY ON YOUR LIFE.

(E) THE PERSONS NAMED IN THE HEALTH CARE POWER OF ATTORNEY AS YOUR AGENT OR SUCCESSOR AGENT.

(F) YOUR PHYSICIAN OR AN EMPLOYEE OF YOUR PHYSICIAN.

(G) ANY PERSON WHO WOULD HAVE A CLAIM AGAINST ANY PORTION OF YOUR ESTATE (PERSONS TO WHOM YOU OWE MONEY).

IF YOU ARE A PATIENT IN A HEALTH FACILITY, NO MORE THAN ONE WITNESS MAY BE AN EMPLOYEE OF THAT FACILITY.

7. YOUR AGENT MUST BE A PERSON WHO IS 18 YEARS OLD OR OLDER AND OF SOUND MIND. IT MAY NOT BE YOUR OWN DOCTOR OR ANY OTHER HEALTH CARE PROVIDER THAT IS NOW PROVIDING YOU WITH TREATMENT; OR AN EMPLOYEE OF YOUR DOCTOR OR PROVIDER; OR A SPOUSE OF THE DOCTOR, PROVIDER, OR EMPLOYEE; UNLESS THE PERSON IS A RELATIVE OF YOURS.

8. YOU SHOULD INFORM THE PERSON THAT YOU WANT HIM OR HER TO BE YOUR HEALTH CARE AGENT AND YOU SHOULD DISCUSS THIS DOCUMENT WITH YOUR AGENT AND YOUR PHYSICIAN AND GIVE EACH A SIGNED COPY. IF YOU ARE IN A HEALTH CARE FACILITY OR A NURSING CARE FACILITY, A COPY OF THIS DOCUMENT SHOULD BE INCLUDED IN YOUR MEDICAL RECORD.

(S.C. STATUTORY FORM)

\

1. DESIGNATION OF HEALTH CARE AGENT

I, ______________________________________________________________________ (Principal)

hereby appoint ____________________________________________________________ (Agent)

_______________________________________________________________________ (Address)

________________________________________________________________________ Home Telephone Work Telephone

as my agent to make health care decisions for me as authorized in this document.

2. EFFECTIVE DATE AND DURABILITY

By this document, I intend to create a durable power of attorney effective upon, and only during, any period of mental incompetence.

3. AGENT'S POWERS

I grant to my agent full authority to make decisions for me regarding my health care. In exercising this authority, my agent shall follow my desires as stated in this document or otherwise expressed by me or known to my agent. In making any decision, my agent shall attempt to discuss the proposed decision with me to determine my desires if I am able to communicate in any way. If my agent cannot determine the choice I would want made, then my agent shall make a choice for me based upon what my agent believes to be in my best interest. My agent's authority to interpret my desires is intended to be in my best interests. My agent's authority to interpret my desires is intended to be as broad as possible, except for any limitations I may state below.

Accordingly, unless limited by Section E, below, my agent is authorized as follows:

A. To consent, refuse, or withdraw consent to any and all types of medical care, treatment, surgical proceedings, diagnostic procedures, medication, and the use of mechanical or other procedures that affect any bodily function, including, but not limited to, artificial respiration, nutritional support and hydration, and cardiopulmonary resuscitation;


RHODE ISLAND

STATUTORY FORM DURABLE POWER OF ATTORNEY FOR HEALTH CARE

WARNING TO PERSON EXECUTING THIS DOCUMENT

THIS IS AN IMPORTANT LEGAL DOCUMENT WHICH IS AUTHORIZED BY THE GENERAL LAWS OF THIS STATE. BEFORE EXECUTING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS.

YOU MUST BE AT LEAST EIGHTEEN (18) YEARS OF AGE AND A RESIDENT OF THE STATE OF RHODE ISLAND FOR THIS DOCUMENT TO BE LEGALLY VALID AND BINDING.

THIS DOCUMENT GIVES THE PERSON YOU DESIGNATE AS YOUR AGENT (THE ATTORNEY IN FACT) THE POWER TO MAKE HEALTH CARE DECISIONS FOR YOU. YOUR AGENT MUST ACT CONSISTENTLY WITH YOUR DESIRES AS STATED IN THIS DOCUMENT OR OTHERWISE MADE KNOWN.

EXCEPT AS YOU OTHERWISE SPECIFY IN THIS DOCUMENT, THIS DOCUMENT GIVES YOUR AGENT THE POWER TO CONSENT TO YOUR DOCTOR NOT GIVING TREATMENT OR STOPPING TREATMENT NECESSARY TO KEEP YOU ALIVE.

NOTWITHSTANDING THIS DOCUMENT, YOU HAVE THE RIGHT TO MAKE MEDICAL AND OTHER HEALTH CARE DECISIONS FOR YOURSELF SO LONG AS YOU CAN GIVE INFORMED CONSENT WITH RESPECT TO THE PARTICULAR DECISION. IN ADDITION, NO TREATMENT MAY BE GIVEN TO YOU OVER YOUR OBJECTION AT THE TIME, AND HEALTH CARE NECESSARY TO KEEP YOU ALIVE MAY NOT BE STOPPED OR WITHHELD IF YOU OBJECT AT THE TIME.

THIS DOCUMENT GIVES YOUR AGENT AUTHORITY TO CONSENT, TO REFUSE TO CONSENT, OR TO WITHDRAW CONSENT TO ANY CARE, TREATMENT, SERVICE, OR PROCEDURE TO MAINTAIN. DIAGNOSE, OR TREAT A PHYSICAL OR MENTAL CONDITION. THIS POWER IS SUBJECT TO ANY STATEMENT OF YOUR DESIRES AND ANY LIMITATION THAT YOU INCLUDE IN THIS DOCUMENT. YOU MAY STATE IN THIS DOCUMENT ANY TYPES OF TREATMENT THAT YOU DO NOT DESIRE. IN ADDITION, A COURT CAN TAKE AWAY THE POWER OF YOUR AGENT TO MAKE HEALTH CARE DECISIONS FOR YOU IF YOUR AGENT (1) AUTHORIZES ANYTHING THAT IS ILLEGAL, (2) ACTS CONTRARY TO YOUR KNOWN DESIRES, OR (3) WHERE YOUR DESIRES ARE NOT KNOWN, DOES ANYTHING THAT IS CLEARLY CONTRARY TO YOUR BEST INTERESTS.

UNLESS YOU SPECIFY A SPECIFIC PERIOD, THIS POWER WILL EXIST UNTIL YOU REVOKE IT.

YOU HAVE THE RIGHT TO REVOKE THE AUTHORITY OF YOUR AGENT BY NOTIFYING YOUR AGENT OR YOUR TREATING DOCTOR, HOSPITAL, OR OTHER HEALTH CARE PROVIDER ORALLY OR IN WRITING OF THE REVOCATION.

YOUR AGENT HAS THE RIGHT TO EXAMINE YOUR MEDICAL RECORDS AND TO CONSENT TO THEIR DISCLOSURE, UNLESS YOU LIMIT THIS RIGHTS IN THIS DOCUMENT.

THIS DOCUMENT REVOKES ANY PRIOR DURABLE POWER OF ATTORNEY FOR HEALTH CARE.

YOU SHOULD CAREFULLY READ AND FOLLOW THE WITNESSING PROCEDURE DESCRIBED AT THE END OF THIS FORM. THIS DOCUMENT WILL NOT BE VALID UNLESS YOU COMPLY WITH THE WITNESSING PROCEDURE.

IF THERE IS ANYTHING IN THIS DOCUMENT THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU.

YOUR AGENT MAY NEED THIS DOCUMENT IMMEDIATELY IN CASE OF AN EMERGENCY THAT REQUIRES A DECISION CONCERNING YOUR HEALTH CARE. EITHER KEEP THIS DOCUMENT WHERE IT IS IMMEDIATELY AVAILABLE TO YOUR AGENT AND ALTERNATE AGENTS OR GIVE EACH OF THEM AN EXECUTED COPY OF THIS DOCUMENT. YOU MAY ALSO WANT TO GIVE YOUR DOCTOR AN EXECUTED COPY OF THIS DOCUMENT.

1. Designation of Health Care Agent. I, ________________________________________ _________________________________________________________________________________ insert your name and address

do hereby designate and appoint: ________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ [Insert name, address, and telephone number of one individual only as you agent to make health care decisions for you. None of the following may be designated as your agent: (1) your treating health care provider, (2) a nonrelative employee of your treating health care provider, (3) an operator of a community care facility, or (4) a nonrelative employee of an operator of a community care facility.]

as my attorney in fact (agent) to make health care decisions for me as authorized in this document. For the purposes of this document, "health care decision" means consent, refusal to consent, or withdrawal of consent to any care, treatment, service, or procedure to maintain, diagnose, or treat an individual's physical or mental condition.

2. Creation of Durable Power of Attorney for Health Care. By this document, I intend to create a durable power of attorney for health care.

3. General statement of Authority Granted. Subject to any limitations in this document, I hereby grant to my agent full power and authority to make health care decisions for me to the same extent that I could make such decisions for myself if I had the capacity to do so. In exercising this authority, my agent shall make health care decisions that are consistent with my desires as stated in this document or otherwise made known to my agent, including, but not limited to, my desires concerning obtaining or refusing or withdrawing life-prolonging care, treatment, services, and procedures.

[If you want to limit the authority of your agent to make health care decisions for you, you can state the limitation in paragraph 4 ("Statement of Desires, Special Provisions, and Limitations") below. You can indicate your desires by including a statement of your desires in the same paragraph.]

4. Statement of Desires, Special Provisions and Limitations. (Your agent must make health care decisions that are consistent with your known desires. You can, but are not required to, state your desires in the space provided below. You should consider whether you want to include a statement of your desires concerning life-prolonging care, treatment, services, and procedures. You can also include a statement of your desires concerning other matters relating to your health care. You can also make your desires known to your agent by discussing your desires with your agent or by some other means. If there are any types of treatment that you do not want to be used, you should state them in the space below. If you want to limit in any way the authority given to your agent by this document, you should state the limits in the space below. If you do not state any limits, your agent will have broad powers to make health care decisions for you, except to the extent that there are limits provided by law.)

In exercising the authority under this durable power of attorney for health care, ny agent shall,act consistently with my desire as stated below and is subject to the special provisions and limitations stated below:

(a) Statement of desire concerning life-prolonging care, treatment, service, and procedures:

(b) Additional statement of desires, special provisions, and limitations regarding health care decisions:

[You may attach additional pages if you need more space to complete your statement. If you attach additional pages, you must date and sign each of the additional pages at the same time you date and sign this document.] If you wish to make a gift of any bodily organ you may do so pursuant to the Uniform Anatomical Gift Act.


TEXAS

CP&R SECTION 135.001, ET SEQ.

INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY FOR HEALTH CARE

THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:

EXCEPT TO THE EXTENT YOU STATE OTHERWISE, THIS DOCUMENT GIVES THE PERSON YOU NAME AS YOUR AGENT THE AUTHORITY TO MAKE ANY AND ALL HEALTH CARE DECISIONS FOR YOU IN ACCORDANCE WITH YOUR WISHES, INCLUDING YOUR RELIGIOUS AND MORAL BELIEFS, WHEN YOU ARE NO LONGER CAPABLE OF MAKING THEM YOURSELF. BECAUSE "HEALTH CARE" MEANS ANY TREATMENT, SERVICE, OR PROCEDURE TO MAINTAIN, DIAGNOSE, OR TREAT YOUR PHYSICAL OR MENTAL CONDITION, YOUR AGENT HAS THE POWER TO MAKE A BROAD RANGE OF HEALTH CARE DECISIONS FOR YOU. YOUR AGENT MAY CONSENT, REFUSE TO CONSENT, OR WITHDRAW CONSENT TO MEDICAL TREATMENT AND MAY MAKE DECISIONS ABOUT WITHDRAWING OR WITHHOLDING LIFE-SUSTAINING TREATMENT. YOUR AGENT MAY NOT CONSENT TO VOLUNTARY INPATIENT MENTAL HEALTH SERVICES, CONVULSIVE TREATMENT, PSYCHOSURGERY, OR ABORTION. A PHYSICIAN MUST COMPLY WITH YOUR AGENT'S INSTRUCTIONS OR ALLOW YOU TO BE TRANSFERRED TO ANOTHER PHYSICIAN.

YOUR AGENT'S AUTHORITY BEGINS WHEN YOUR DOCTOR CERTIFIES THAT YOU LACK THE CAPACITY TO MAKE HEALTH CARE DECISIONS. YOUR AGENT IS OBLIGATED TO FOLLOW YOUR INSTRUCTIONS WHEN MAKING DECISIONS ON YOUR BEHALF. UNLESS YOU STATE OTHERWISE.

YOUR AGENT HAS THE SAME AUTHORITY TO MAKE DECISIONS ABOUT YOUR HEALTH CARE AS YOU WOULD HAVE HAD.

IT IS IMPORTANT THAT YOU DISCUSS THIS DOCUMENT WITH YOUR PHYSICIAN OR OTHER HEALTH CARE PROVIDER BEFORE YOU SIGN IT TO MAKE SURE THAT YOU UNDERSTAND THE NATURE AND RANGE OF DECISIONS THAT MAY BE MADE ON YOUR BEHALF. IF YOU DO NOT HAVE A PHYSICIAN, YOU SHOULD TALK WITH SOMEONE ELSE WHO IS KNOWLEDGEABLE ABOUT THESE ISSUES AND CAN ANSWER YOUR QUESTIONS. YOU DO NOT NEED A LAWYER'S ASSISTANCE TO COMPLETE THIS DOCUMENT, BUT IF THERE IS ANYTHING IN THIS DOCUMENT THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU.

THE PERSON YOU APPOINT AS AGENT SHOULD BE SOMEONE YOU KNOW AND TRUST. THE PERSON MUST BE 18 YEARS OF AGE OR OLDER OR A PERSON UNDER 18 YEARS OF AGE WHO HAS HAD THE DISABILITIES OF MINORITY REMOVED. IF YOU APPOINT YOUR HEALTH OR RESIDENTIAL CARE PROVIDER (E.G. YOUR PHYSICIAN OR AN EMPLOYEE OF A HOME HEALTH AGENCY, HOSPITAL, NURSING HOME, OR RESIDENTIAL CARE HOME, OTHER THAN A RELATIVE), THAT PERSON HAS TO CHOOSE BETWEEN ACTING AS YOUR AGENT OR AS YOUR HEALTH OR RESIDENTIAL CARE PROVIDER; THE LAW DOES NOT PERMIT A PERSON TO DO BOTH AT THE SAME TIME.

YOU SHOULD INFORM THE PERSON YOU APPOINT THAT YOU WANT THE PERSON TO BE YOUR HEALTH CARE AGENT. YOU SHOULD DISCUSS THIS DOCUMENT WITH YOUR AGENT AND YOUR PHYSICIAN AND GIVE EACH A SIGNED COPY. YOU SHOULD INDICATE ON THE DOCUMENT ITSELF THE PEOPLE AND INSTITUTIONS WHO HAVE SIGNED COPIES. YOUR AGENT IS NOT LIABLE FOR HEALTH CARE DECISIONS MADE IN GOOD FAITH ON YOUR BEHALF.

EVEN AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU HAVE THE RIGHT TO MAKE HEALTH CARE DECISIONS FOR YOURSELF AS LONG AS YOU ARE ABLE TO DO SO AND TREATMENT CANNOT BE GIVEN TO YOU OR STOPPED OVER YOUR OBJECTION. YOU HAVE THE RIGHT TO REVOKE THE AUTHORITY GRANTED TO YOUR AGENT BY INFORMING YOUR AGENT OR YOUR RESIDENTIAL CARE PROVIDER ORALLY OR IN WRITING, OR BY YOUR EXECUTION OF A SUBSEQUENT DURABLE POWER OF ATTORNEY FOR HEALTH CARE. UNLESS YOU STATE OTHERWISE, YOUR APPOINTMENT OF A SPOUSE DISSOLVES ON DIVORCE.

THIS DOCUMENT MAY NOT BE CHANGED OR MODIFIED, IF YOU WANT TO MAKE CHANGES IN THE DOCUMENT, YOU MUST MAKE AN ENTIRELY NEW ONE.

YOU MAY WISH TO DESIGNATE AN ALTERNATE AGENT IN THE EVENT THAT YOUR AGENT IS UNWILLING, UNABLE, OR INELIGIBLE TO ACT AS YOUR AGENT. ANY ALTERNATE AGENT YOU DESIGNATE HAS THE SAME AUTHORITY TO MAKE HEALTH CARE DECISIONS FOR YOU.

THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED IN THE PRESENCE OF TWO OR MORE QUALIFIED WITNESSES. THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:

(1) the person you have designated as your agent;

(2) your health or residential care provider or an employee of your health or residential care provider;

(3) your spouse;

(4) your lawful heirs or beneficiaries named in your will or

a deed, or

(5) creditors or persons who have a claim against you.

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

DESIGNATION OF HEALTH CARE AGENT

I, _______________________________________________________________________________ insert your name

appoint

NAME: ________________________________________________________________________

ADDRESS: _____________________________________________________________________

PHONE: _________________________________________

as my agent to make any and all health care decisions for me, except to the extent I state otherwise in this document. This durable power of attorney for health care takes effect if I become unable to make my own health care decisions and this fact is certified in writing by my physician.

LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE AS FOLLOWS:

DESIGNATION OF AGENT.

(You are not required to designate an alternate agent, but you may do so. An alternate agent may make the same health care decisions as the designated agent if the designated agent is unable or unwilling to act as your agent. If the agent designated is your spouse, the designation is automatically revoked by law if your marriage is dissolved.)

If the person designated as my agent is unable or unwilling to make health care decisions for me, I designate the following persons to serve as my agent to make health care decisions for me as authorized by this document, who serve in the following order:

A. FIRST ALTERNATE AGENT.

NAME: ________________________________________________________________________

ADDRESS: _____________________________________________________________________

PHONE: _________________________________________

B. SECOND ALTERNATE AGENT.

NAME: ________________________________________________________________________

ADDRESS: _____________________________________________________________________

PHONE: _________________________________________

The original of this document is kept at

The following individuals or institutions have signed copies:

NAME: ________________________________________________________________________

ADDRESS: _____________________________________________________________________

PHONE: _________________________________________

DURATION.

I understand that this power of attorney exists indefinitely from the date I execute this document unless I establish a shorter time or revoke the power of attorney. If I am unable to make health care decisions for myself when this power of attorney expires, the authority I have granted my agent continues to exist until the time I become able to make health care decisions for myself.

(IF APPLICABLE) This power of attorney ends on the following date: .


UTAH

SECTION 75-2-1107

SPECIAL POWER OF ATTORNEY

I, __________________________________________________________________of _________________________________________________this ____________day of ________, 199 __ being of sound mind, willfully and voluntarily appoint ______________________________________________ of _________________________________________________________________________________ as my agent and attorney-in-fact, without substitution, with lawful authority to execute a directive on my behalf under Section 75-2-1105, governing the acre and treatment to be administered to withheld from me at any time after I incur, disease, or illness which renders me unable to give current directions to attending physicians and other providers of medical services.


VERMONT

VERMONT STATUTES ANNOTATED 14-3466

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY FOR HEALTH CARE

THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:

EXCEPT TO THE EXTENT YOU STATE OTHERWISE, THIS DOCUMENT GIVES THE PERSON YOU NAME AS YOUR AGENT THE AUTHORITY TO MAKE ANY AND ALL HEALTH CARE DECISIONS FOR YOU WHEN YOU ARE NO LONGER CAPABLE OF MAKING THEM YOURSELF. "HEALTH CARE" MEANS ANY TREATMENT, SERVICE, OR PROCEDURE TO MAINTAIN, DIAGNOSE, OR TREAT YOUR PHYSICAL OR MENTAL CONDITION, YOUR AGENT THEREFORE CAN HAVE THE POWER TO MAKE A BROAD RANGE OF HEALTH CARE DECISIONS FOR YOU. YOUR AGENT MAY CONSENT, REFUSE TO CONSENT, OR WITHDRAW CONSENT TO MEDICAL TREATMENT AND MAY MAKE DECISIONS ABOUT WITHDRAWING OR WITHHOLDING LIFE-SUSTAINING TREATMENT.

YOU MAY STATE IN THIS DOCUMENT ANY TREATMENT YOU DO NOT DESIRE OR TREATMENT YOU WANT TO BE SURE YOU RECEIVE. YOUR AGENT'S AUTHORITY WILL BEGIN WHEN YOUR DOCTOR CERTIFIES THAT YOU LACK THE CAPACITY TO MAKE HEALTH CARE DECISIONS. YOU MAY ATTACH ADDITIONAL PAGES IF YOU NEED MORE SPACE TO COMPLETE YOUR STATEMENT.

YOU AGENT WILL BE OBLIGATED TO FOLLOW YOUR INSTRUCTIONS WHEN MAKING DECISIONS ON YOUR BEHALF. UNLESS YOU STATE OTHERWISE, YOUR AGENT WILL HAVE THE SAME AUTHORITY TO MAKE DECISIONS ABOUT YOUR HEALTH CARE AS YOU WOULD HAVE HAD.

IT IS IMPORTANT THAT YOU DISCUSS THIS DOCUMENT WITH YOUR PHYSICIAN OR OTHER HEALTH CARE PROVIDER BEFORE YOU SIGN IT TO MAKE SURE THAT YOU UNDERSTAND THE NATURE AND RANGE OF DECISIONS WHICH MAY BE MADE ON YOUR BEHALF. IF YOU DO NOT HAVE A PHYSICIAN, YOU SHOULD TALK WITH SOMEONE ELSE WHO IS KNOWLEDGEABLE ABOUT THESE ISSUES AND CAN ANSWER YOUR QUESTIONS. YOU DO NOT NEED A LAWYER'S ASSISTANCE TO COMPLETE THIS DOCUMENT, BUT IF THERE IS ANYTHING IN THIS DOCUMENT THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU.

THE PERSON YOU APPOINT AS AGENT SHOULD BE SOMEONE YOU KNOW AND TRUST AND MUST BE AT LEAST 18 YEARS OLD. IF YOU APPOINT YOUR HEALTH OR RESIDENTIAL CARE PROVIDER (E.G. YOUR PHYSICIAN OR AN EMPLOYEE OF A HOME HEALTH AGENCY, HOSPITAL, NURSING HOME, OR RESIDENTIAL CARE HOME, OTHER THAN A RELATIVE), THAT PERSON WILL HAVE TO CHOOSE BETWEEN ACTING AS YOUR AGENT OR AS YOUR HEALTH OR RESIDENTIAL CARE PROVIDER; THE LAW DOES NOT PERMIT A PERSON TO DO BOTH AT THE SAME TIME.

YOU SHOULD INFORM THE PERSON YOU APPOINT THAT YOU WANT HIM OR HER TO BE YOUR HEALTH CARE AGENT. YOU SHOULD DISCUSS THIS DOCUMENT WITH YOUR AGENT AND YOUR PHYSICIAN AND GIVE EACH A SIGNED COPY. YOU SHOULD INDICATE ON THE DOCUMENT ITSELF THE PEOPLE AND INSTITUTIONS WHO WILL HAVE SIGNED COPIES. YOUR AGENT WILL NOT BE LIABLE FOR HEALTH CARE DECISIONS MADE IN GOOD FAITH ON YOUR BEHALF.

EVEN AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU HAVE THE RIGHT TO MAKE HEALTH CARE DECISIONS FOR YOURSELF AS LONG AS YOU ARE ABLE TO DO SO, AND TREATMENT CANNOT BE GIVEN TO YOU OR STOPPED OVER YOUR OBJECTION. YOU HAVE THE RIGHT TO REVOKE THE AUTHORITY GRANTED TO YOUR AGENT BY INFORMING HIM OR HER OR YOUR HEALTH CARE PROVIDER ORALLY OR IN WRITING.

THIS DOCUMENT MAY NOT BE CHANGED OR MODIFIED, IF YOU WANT TO MAKE CHANGES IN THE DOCUMENT, YOU MUST MAKE AN ENTIRELY NEW ONE.

YOU MAY WISH TO DESIGNATE AN ALTERNATE AGENT IN THE EVENT THAT YOUR AGENT IS UNWILLING, UNABLE, OR INELIGIBLE TO ACT AS YOUR AGENT. ANY ALTERNATE AGENT YOU DESIGNATE WILL HAVE THE SAME AUTHORITY TO MAKE HEALTH CARE DECISIONS FOR YOU.

THIS POWER OF ATTORNEY WILL NOT BE VALID UNLESS IT IS SIGNED IN THE PRESENCE OF TWO OR MORE QUALIFIED WITNESSES WHO MUST BOTH BE PRESENT WHEN YOU SIGN OR ACKNOWLEDGE YOUR SIGNATURE. THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:

THE DURABLE POWER OF ATTORNEY SHALL BE IN SUBSTANTIALLY THE FOLLOWING FORM

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

I, _______________________________________________________________________ , of insert your name

____________________________________________________________________ appoint

___________________________________________________________________________as my agent to make any and all health care decisions for me, except to the extent I state otherwise in this document. This durable power of attorney for health care shall take effect in the event I become unable to make my own health care decisions.

(a) Statement of desires, special provisions and limitations regarding health care decisions. __________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

HERE YOU MAY INCLUDE ANY SPECIFIC DESIRES OR LIMITATIONS YOU DEEM APPROPRIATE, SUCH AS WHEN LIFE-SUSTAINING MEASURES SHOULD BE WITHHELD; DIRECTIONS WHETHER TO CONTINUE OR DISCONTINUE ARTIFICIAL NUTRITION AND HYDRATION; OR INSTRUCTIONS TO REFUSE ANY SPECIFIC TYPES OF TREATMENT THAT ARE INCONSISTENT WITH YOUR RELIGIOUS BELIEFS OR UNACCEPTABLE TO YOU FOR ANY OTHER REASON:

attach additional pages as necessary

(b) The subject of life-sustaining treatment is of special importance.

For your convenience in dealing with that subject, some general statements concerning the withholding or removal of life-sustaining treatment are set forth below:

If you agree with one of these statements, you may include the statement in the blank space above:

If I suffer a condition from which there is no reasonable prospect of regaining my ability to think and act for myself, I want only care directed to my comfort and dignity, and authorize my agent to decline all treatment (including artificial nutrition and hydration) the primary purpose of which is to prolong my life.

If I suffer from a condition form which there is no reasonable prospect of regaining the ability to think and act for myself, I want care directed to my comfort and dignity, and also want artificial nutrition and hydration if needed, but authorize my agent to decline all other treatment the primary purpose of which is to prolong my life.


WEST VIRGINIA

WEST VIRGINIA CODE SECTION 16-30A-18

MEDICAL POWER OF ATTORNEY

Dated: ___________________________

I, _________________________________________________________________________ (insert you name and address)

hereby appoint _______________________________________________________________ ___________________________________________________________________________ (insert the name, address, area code and telephone number of the person you wish to designate as your representative)

as my representative to act on my behalf to give, withhold or withdraw informed consent to health care decisions in the event that I am not able to do so myself. If my representative is unable, unwilling or disqualified to serve, then I appoint ____________________________________________________ as my successor representative.

This appointment shall extend to (but not be limited to) decisions relating to medical treatment, surgical treatment, nursing care, medications, hospitalization, care and treatment in a nursing home or other facility, and home health care. The representative appointed by this document is specifically authorized to act on my behalf to consent to, refuse or withdraw any real and all medical treatment or diagnostic procedures, if my representative determines that I, if able to do so, would consent to, refuse or withdraw such treatment or procedures. Such authority shall include, but not be limited to, the withholding or withdrawal of life-prolonging intervention when in the opinion of two physicians who have examined me, one of whom is my attending physician, such life-prolonging intervention offers no medical hope of benefit.

I appoint this representative because I believe this person understands my wishes and values and will act to carry into effect the health care decisions that I would make if I were able to do so, and because I also believe that this person will act in my best interests when my wishes are unknown. It is my intent that my family, my physician and all legal authorities be bound by the decisions that are made by the representative appointed by this document, and it is my intent that these decisions should not be the subject of review by any health care provider, or administrative or judicial agency.


WISCONSIN

WISCONSIN STATUTES SECTION 155.30

POWER OF ATTORNEY FOR HEALTH CARE INSTRUMENT

"NOTICE TO PERSON MAKING THIS DOCUMENT"

YOU HAVE THE RIGHT TO MAKE DECISIONS ABOUT YOUR HEALTH CARE. NO HEALTH CARE MAY BE GIVEN TO YOU OVER YOUR OBJECTIONS, AND NECESSARY HEALTH CARE MAY NOT BE STOPPED OR WITHHELD IF YOU OBJECT.

BECAUSE YOUR HEALTH CARER PROVIDERS IN SOME CASE MAY NOT HAVE HAD THE OPPORTUNITY TO ESTABLISH A LONG-TERM RELATIONSHIP WITH YOU, THEY ARE OFTEN UNFAMILIAR WITH YOUR BELIEFS AND VALUES AND THE DETAILS OF YOUR FAMILY RELATIONSHIPS. THIS POSES A PROBLEM IF YOU BECOME PHYSICALLY OR MENTALLY UNABLE TO MAKE DECISIONS ABOUT YOUR HEALTH CARE.

IN ORDER TO AVOID THIS PROBLEM, YOU MAY SIGN THIS LEGAL DOCUMENT TO SPECIFY THE PERSON WHOM YOU WANT TO MAKE HEALTH CARE DECISIONS FOR YOU IF YOU ARE UNABLE TO MAKE THOSE DECISIONS PERSONALLY. THAT PERSON IS KNOWN AS YOUR HEALTH CARE AGENT. YOU SHOULD TAKE SOME TIME TO DISCUSS YOUR THOUGHTS AND BELIEFS ABOUT MEDICAL TREATMENT WITH THE PERSON OR PERSONS WHOM YOU HAVE SPECIFIED. YOU MAY STATE IN THIS DOCUMENT ANY TYPES OF HEALTH CARE THAT YOU DO OR DO NOT DESIRE, AND YOU MAY LIMIT THE AUTHORITY OF YOUR HEALTH CARE AGENT IF YOUR HEALTH CARE AGENT IS UNAWARE OF YOUR DESIRES WITH RESPECT TO A PARTICULAR HEALTH CARE DECISIONS, HE OR SHE IS REQUIRED TO DETERMINE WHAT WOULD BE ION YOUR BEST INTERESTS IN MAKING THE DECISION.

THIS IS AN IMPORTANT LEGAL DOCUMENT. IT GIVES YOUR AGENT BROAD POWERS TO MAKE HEALTH CARE DECISIONS FOR YOU. IT REVOKES ANY PRIOR POWER OF ATTORNEY FOR HEALTH CARE THAT YOU MAY HAVE MADE. IF YOU WISH TO CHANGE YOUR POWER OF ATTORNEY FOR HEALTH CARE, YOU MAY REVOKE THIS DOCUMENT AT ANY TIME BY DESTROYING IT, BY DIRECTING ANOTHER PERSON TO DESTROY IT IN YOUR PRESENCE, BY SIGNING A WRITTEN AND DATED STATEMENT OR BY STATING THAT IT IS REVOKED IN THE PRESENCE OF TWO WITNESSES. IF YOU REVOKE, YOU SHOULD NOTIFY YOUR AGENT, YOUR HEALTH CARE PROVIDERS AND ANY OTHER PERSON TO WHOM YOU HAVE GIVEN A COPY. IF YOUR AGENT IS YOUR SPOUSE AND YOUR MARRIAGE IS ANNULLED OR YOU ARE DIVORCED AFTER SIGNING THIS DOCUMENT, THE DOCUMENT IS INVALID.

DO NOT SIGN THIS DOCUMENT UNLESS YOU CLEARLY UNDERSTAND IT.

IT IS SUGGESTED THAT YOU KEEP THE ORIGINAL OF THIS DOCUMENT ON FILE WITH YOUR PHYSICIAN."

POWER OF ATTORNEY FOR HEALTH CARE

Document made this ______ day of _____________ (month), 199____ .

CREATION OF POWER OF ATTORNEY FOR HEALTH CARE

I, ____________________________________________________________________ ______________________________________________________________________________ (print name, address, and date of birth)

, being of sound mind, intend by this document to create a power of attorney for health care. My executing this power of attorney for health care is voluntary.

Despite the creation of this power of attorney for health care. I expect to be fully informed about and allowed to participate in any health care decision for me, to the extent that I am able. For the purposes of this document, "health care decision" means an informed decision to accept, maintain, discontinue or refuse any care, treatment, service or procedure to maintain, diagnose or treat any physical or mental condition.

DESIGNATION OF HEALTH CARE AGENT

If I am no longer able to make health care decisions for myself, I hereby designate __________________________________________________________________________ __________________________________________________________________________ (print name, address, and telephone number)

to be my health care agent for the purposes of making health care decisions on my behalf. If he or she is ever unable or unwilling to do so, I hereby designate ________________________________________________________________________________ ________________________________________________________________________________ (print name, address, and telephone number)

to be my alternate health care agent for the purpose of making health care decisions on my behalf. Neither my health care provider, an employee of my health care provider, an employee of a health care facility in which I am a patient or a spouse of any of those persons, unless he or she is also my relative. For purposes of this document, "incapacity" exists if 2 physicians or a physician and a psychologist who have personally examined me sign a statement that specifically expresses their opinion that I have a condition that means that I am unable to receive and evaluate information effectively or to communicate decisions to such an extent that I lack the capacity to manager my health care decisions. A copy of that statement must be attached to this document.

GENERAL STATEMENT OF AUTHORITY GRANTED

Unless I have specified otherwise in this document, if I ever have incapacity I instruct my health care provider to obtain the health care decision of my health care provider if I need treatment, for all of my health care and treatment. I have discussed my desires thoroughly with my health care agent and believe that he or she understands my philosophy regarding the health care decisions I would make if I were able. I desire that my wishes be carried out through the authority given to my health care agent under this document.

If I am unable, due to my incapacity, to make a health care decision, my health care agent is instructed to make the health care decision for me but my health care agent should try to discuss with me any specific proposed health care if I am able to communicate in any manner, including by blinking with my eyes. If this communication cannot be made, my health care agent shall base his or her decision on any health care choices that I have expressed prior to the time of the decision. If I have not expresses a health care choice about the health care in question and communication cannot be made, my health care agent shall base his or her health care decision on what he or she believes to be in my best interest.

LIMITATIONS ON MENTAL HEALTH TREATMENT

My health care agent may not admit or commit me on an inpatient basis to an institution for mental diseases, an intermediate care facility for the mentally retarded, a state treatment facility or a treatment facility. My health care agent may not consent to experimental mental health research or psychosurgery, electroconvulsive treatment or drastic mental health procedures for me.

ADMISSION TO NURSING HOMES OR COMMUNITY BASED RESIDENTIAL FACILITIES

My health care agent may admit me to a nursing home or community-based residential facility for short-term stays for recuperative care or respite care.

IF I have checked "YES" to the following, my health care agent may admit me for the purpose other than recuperative care or respite care but if I have checked "NO" to the following, my health care agent may not so admit me:

  1. A nursing home -- YES NO
  2. A community-based residential facility -- YES NO If I have not checked "YES" or "NO" immediately above, my health care agent may only admit me for short-term stays for recuperative care or respite care.

PROVISION OF A FEEDING TUBE

If I have checked "YES" to the following, my health care agent may have a feeding tube withheld or withdrawn from me, unless my physician has advised that, in his or her professional judgment, this will cause me pain or will reduce my comfort. If I have checked "NO" to the following, my health care agent may not have a feeding tube withheld or withdrawn from me.

My health care agent may not have orally ingested nutrition on hydration withheld or withdrawn from me unless provision of the nutrition or hydration is medically contraindicated.

Withhold or withdraw a feeding tube --- YES NO

If I have not checked "YES" or "NO" immediately above, my health care agent may not have a feeding tube withdrawn from me.

HEALTH CARE DECISIONS FOR PREGNANT WOMEN

If I have checked "YES" to the following, my health care agent may make health care decisions for me even if my agent knows I am pregnant. If I have checked "NO" to the following, my health care agent may not make health care decisions for me if my health care agent knows I am pregnant.

Health care decision if I am pregnant --- YES NO

If I have not checked either "YES" or "NO" immediately above, my health care agent may not make health care decisions for me if my health care agent knows I am pregnant.

STATEMENT OF DESIRES, SPECIAL PROVISIONS OR LIMITATIONS


CHAPTER 5

POWER OF ATTORNEY QUESTIONNAIRE

Anyone creating a durable power of attorney for financial affairs should have his financial affairs in writing so that the attorney in fact will know of them. This is especially true of a durable power of attorney that springs into effect after the principal becomes mentally incapable. The principal may no longer be able to inform the attorney in fact of the nature and extent of his financial affairs.

In nearly every family there have instances in which a person has become incompetent and no one knew what investments the person had, what property the person owned or what insurance existed. In one particular case an elderly woman developed senile dementia. The woman was subsequently placed in a nursing home and her estate was liquidated to pay for her care. It was feared the estate would exhaust its limited funds and she would be forced to pay her way on public charity. After she was in the home for several months, it was discover, quite by accident, that she had an insurance policy under which her nursing home care would be covered. The past costs were recovered and her care was reimbursed with insurance funds. Had the existence of the policy been known from the outset, a great deal of aggravation, concern and needless work would have been avoided.

The above case highlights the need for an Attorney in Fact to be very familiar not only with the wishes of the Principal but also the Principal's estate. An Attorney in Fact can not manage an estate properly if he has no knowledge of the assets in the estate. It is necessary, indeed critical, for a Principal to fully advise the Attorney in Fact of the size, location and make-up of the estate. Once the Principal becomes incompetent, he may no longer be able to convey this information to the Attorney in Fact. Therefore to fully protect his interests, the Principal should create a list of all his assets in the estate. The list could be given to the Attorney in Fact, kept in place where the attorney in fact would find it when the Principal became incompetent, or given to given to a third party, such as a lawyer, to give the Attorney in Fact after the Principal's incompetency. The important thing is that a list of some type should be created for the Attorney in Fact.

This chapter contains an estate questionnaire on which all of the property of the principal should be listed. Should the principal become mentally incompetent, the attorney in fact will be able to marshal assets and begin his duties immediately. The attorney in fact must know the financial affairs of the principal. The following form, when completed, can provide the attorney in fact that vital information.


ESTATE PLANNING QUESTIONNAIRE

A. BACKGROUND INFORMATION

1. Name (include all other names once used, i.e. maiden) ________________________________________________________________________

2. Address and phone number (home and business) ________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

3. Employer's name, address and phone number: ________________________________________________________________________

________________________________________________________________________

4. Spouse's employer's name, address and phone number: _________________________________________________________________________

_________________________________________________________________________

5. Occupation:____________________________________________

6. Spouse's occupation:_____________________________________

7. Social security number:____________________________________

8. Spouse's social security number:_____________________________

9. Former military service (branch and dates of service):

________________________________________________________

________________________________________________________

10. Date and place of birth:___________________________________

11. Name of spouse:_________________________________________

12. Date and place of spouse's birth: ________________________________________________________________________

13. Date and place of marriage: ________________________________________________

14. Length of residency in the state:______________________________________________

15. Previous marriages for each spouse:___________________________________________

_________________________________________________________________________

_________________________________________________________________________

16. Children:_______________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

17. Children of spouse (step-children):____________________________________________

_________________________________________________________________________

_________________________________________________________________________

18. Deceased children: _______________________________________________________

________________________________________________________________________

19. Grandchildren: __________________________________________________________

_________________________________________________________________________

20. Grandchildren of spouse: ____________________________________________________

__________________________________________________________________________

21. Parents and address: _______________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

22. Parents of spouse and address: _______________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

23. Last Will:

a. Date executed:____________________________________________________________

b . Location of original: _______________________________________________________

c. Attorney who prepared will, address, phone: _________________________________________________________________________

_________________________________________________________________________

B. PROPERTY

1. Real property (for each piece of real property state):

a. (1) Type of property: _______________________________________________________

(2) Location of property: _______________________________________________________

__________________________________________________________________________

(3) Holder and amount of liens on the property:_______________________________________ ___________________________________________________________________________

(4) Fair market value of the property not deducting for the liens: __________________________________________________________________________

(5) Date of purchase and original amount: ___________________________________________

(6) How is title to the property taken? (What does it say on the deed? separate property, joint tenancy, tenancy in the entirety, tenancy in common):

______________________________________________________________________________

______________________________________________________________________________


RECORDING AND REVOKING A POWER OF ATTORNEY

This chapter concerns what happens after a power of attorney is executed. Discussed herein are the recordation requirements and benefits of recordation. In addition,the law and procedure for revocation of a power of attorney is also discussed

I. RECORDATION

Unless there is a state law requiring recordation of a power of attorney, it need not be recorded to be valid. When a state requires the power of attorney to be recorded, the principal's signature must be notarized as a requirement for recordation. Some states (such as Wyoming) hold that while an attorney in fact holding an unacknowledged power of attorney is not able to sell or convey the principal's real property, he can hold and accept property on behalf of the principal.

Several states have statutes that require the recordation of powers of attorney which were given to an Attorney in Fact to accomplish for specific purposes. For example, Indiana requires a power of attorney for the execution of reciprocal insurance to be recorded. In addition, a few other states (including Kansas, New York and Ohio) require that a power of attorney to convey land be recorded. Both Arkansas and North Carolina require all powers of attorney (general, limited, and durable) to be recorded with the registrar of deeds in the principal's county of residence and with the clerk of the Superior Court of that county within 30 days of their execution.

The rationale for the recordation requirement for a power of attorney is that it gives notice to the world at large of the conveyance or encumbrance of the property. The recordation also states to the world that the attorney in fact has the actual authority to convey the property. Recordation makes a title search and the obtaining of title insurance for a transaction much easier to obtain. Georgia and Massachusetts have held that the power of attorney need not be recorded if the statute merely requires conveyance to be recorded.

Unless a power of attorney contains a time limitation it will usually last until it is revoked, terminated or the principal dies. When a power of attorney states a specific termination date, that date will control the termination of the power. Upon the expiration of the stated date, the right of the attorney in fact to act for the principal will lapse. In the case of durable powers of health care (discussed in Chapter 4) many states limit by statute the maximum period of time in which an attorney in fact can make health care decisions for a principal (in California it is seven years). Should the principal continue to allow the attorney in fact to act for him after the power of attorney has expired, a rebuttable presumption is created that the acts undertaken by the former attorney in fact are ratified.

The definite advantage in recording a power of attorney is that once it is recorded it can only be revoked, recording a revocation. Third persons who are dealing with the attorney in fact can rely upon the fact that a revocation has not been recorded as proof that the power of attorney is still in effect. Unless the third party has actual knowledge that a recorded power was revoked, any contract entered by the attorney in fact prior to the recordation of a revocation will bind the principal.

II. REVOCATION

The principal can revoke the power of attorney as long as the principal is legally competent. In most states, a general or limited power of attorney will immediately terminate once the principal becomes mentally incompetent. Two states (Louisiana and Pennsylvania) hold that a power of attorney continues during the principal's period of mental incapacity unless the power of attorney specifically states otherwise.

All that is needed for an effective revocation is for the principal to notify the attorney in fact that the durable power of attorney terminates on a certain date and demand the durable power of attorney assets held by the attorney in fact be returned to the principal prior to the date of revocation. The principal simply affixes a letter to the durable power of attorney document stating that the durable power of attorney is revoked effective the certain date. If the power was recorded, the revocation must be recorded to give constructive notice of the revocation to the world.

Following are forms for revocation of a power of attorney:

  1. The revocation for a nonrecorded power of attorney.
  2. The revocation for a recorded power of attorney.


REVOCATION OF POWER OF ATTORNEY

KNOW ALL PERSONS:

On __________________, I __________________________________ residing at _________________________________________________________ granted a power of attorney to _______________________________________wherein I appointed this person my attorney in fact to perform the acts designated in a power of attorney instrument.

Effective immediately, I hereby revoke this above described power of attorney along with all powers and authority previously granted to ___________________________________ as my attorney in fact.


CHAPTER 7

LIVING WILL DECLARATIONS

A living will is not actually a Will for probate purposes; it is a limited power of attorney for health care. A living will is a person's declaration and directive to a treating physician, hospital and the world at large that the person executing it specifically wants or does not want to be kept alive through the use of extraordinary means. A living will declaration is the only way to ascertain the intent of the person when he no longer has the mental capacity or ability to state those desires directly.

State law generally presumes that a person will want any and all means used to be kept alive. Courts will order such extraordinary means to be employed unless the person has previously made a living will declaration stating an opposite intent.

All states permit living will declarations to be used in their jurisdictions. Many of the state acts which permit living wills go by such as the "Natural Death Act," "Right to Death With Dignity Act," "Living Will Declaration Act", "Rights of Terminally Ill Act", Advance Directive Act" and "Life Sustaining Procedures Act." A few states, Massachusetts, Michigan, New Jersey and New York, have not specifically adopted a living will act because they feel that such authority is covered in their durable power of attorney for health care, advance directive or health proxy.

Use of a state's statutorily authorized living will declaration, advance directive or health care proxy adopted is not mandatory. All states will enforce a living will declaration if it substantially complies with state law. The uniform form contained in this book is substantially in the form permitted for all states. A living will declaration be it a statutory form or the uniform one in this book should nonetheless be executed. A living will is instructive to the court as to the user's wishes. When the wishes are not inconsistent with state law they will be honored.

Some states will not recognize a living will unless it is executed close to the time of the principal's mental incapacity and with informed consent. In those states, living wills have to be executed in a hospital or with a doctor shortly before the surgery or treatment that subsequently rendered the person incompetent.

The fact that some states will not recognize a living will executed some time before the mental incapacity began does not mean that it should not be executed "until later." Should it later be ruled invalid under state law, there's no harm done. The principal will be treated as though it had never been executed. It is the recommendation of most estate planners that everyone execute a living will to state their specific wishes and directives to physicians. The living will should be restated and redone prior to any surgery or major medical is undertaken. Mississippi requires that a living will be filed with the Mississippi Bureau of Vital Statistics or the Mississippi State Board of Health. A uniform living will declaration follows this chapter.

Most states require that a living will declaration have at least two witnesses over the age of 21 years. A few states accept witnesses 18 years of age, and some states require a living will to be notarized. The living will declaration included in this chapter requires two witnesses and a notary acknowledgment. Having the living will declaration notarized is a good idea even though it might not be required in most states. The notary is an impartial licensed official of a state. The notary's testimony as to capacity and intent carries more weight with the court in the event of a dispute over a principal's intent or mental capacity. It is suggested that the witnesses be over 21 years of age but not so elderly or in poor health that they might predecease the person using the living will declaration.

Furthermore, most states require that the witnesses not be blood relatives or anyone who would share in the estate of the person utilizing the living will declaration. Anyone who would benefit from a person's death should not be a witness. Using such a disqualified person will usually invalidate the living will for the reason that the states do not want to give any witness an incentive to put the person using the living will to death.

Also most states do not permit doctors, medical personnel or nursing home personnel who are treating a principal to be witnesses. This removes concern that they might exert an undue influence on the person using the living will declaration. None of the above persons should be used as a witness even if permitted under state law. Avoid raising this issue.

After a living will declaration has been executed, a copy should be given to the person's physician. Several states have laws that require the declarations to be delivered to the physician before the patient becomes incompetent if they are to be effective. The physician can consult with the patient and verify that the declaration truly expresses the person's intent. It really does no good to have the declaration tucked away in a safety deposit box when it is needed most. The existence of the living will declaration should be widely publicized so that if something happens (such as an auto accident) someone will know to tell the treating physicians and hospital that a living will declaration is in existence. Copies of the living will should be given to those named as agent? They will be able to produce the living will declaration and ensure that the principal's intent is fulfilled.

A sad example of the need for a living will declaration recently received national attention. An unmarried, pregnant woman suffered brain damage as the result of an auto accident. Her partner, the father of the child, wanted the child to be born so he could raise it. The woman's parents did not want the child to be born. Since the woman had not executed a living will declaration, there was nothing in writing that stated her feelings on the matter. The decision thus rested with the parents as next of kin. The father of the child filed a lawsuit that sought to prevent the parents from removing the life support machine and killing his child. Various women's rights groups sided with the parents, arguing that no man should force a woman to have a child even if the woman is brain dead. The matter was settled out of court with the parents agreeing to let the father raise their grandchild.

Several states (Massachusetts, Minnesota, New York, Virginia) do not recognize durable powers of attorney. These states have enacted statutory living wills or health care proxies. These statutory forms, although not mandatory, appoint a person who is to make health care decisions once the principal becomes incompetent. Such statutory forms are construed as narrowly defined durable powers of attorney for health care. To be as protected as possible execute both the state's statutory living will form and this book's uniform durable power of attorney for health care form or the combined uniform financial and health care durable power of attorney form.

In the uniform living will declaration used in this book, a woman is called upon to state whether she wants or does not want life support to be withdrawn if by doing so it would cause an abortion. Even with a woman's stated intention on this matter, there is no guarantee that a court will or will not follow it if an abortion would result. A court will look at the woman's intention in light of current appropriate state and federal law. If it does not violate the law, it may be given effect.

A woman might also attempt to define the circumstances under which she would permit a child to be born. Example: If the child was seriously deformed or handicapped, she might state in the section "for other instructions" that she would want the life support removed under those circumstances with the knowledge that an abortion would result. In this situation, there is no guarantee that a court will approve or disapprove the removal of life support, but at least the intention was made clear for the court and all concerned to consider.

One of the most commonly raised question is whether a person can state whether he or she wants food and/or liquids withheld with the effect that they will die. Most states permit a person to state in a living will the desire to withhold food and/ or liquids in the situation that the person is comatose without hope of recovery.

Several states, however, have specific limitations on the on the withholding of food and/or liquids:

  1. Florida - not permitted to be withheld
  2. Indiana- appropriate (determined under the circumstances, may not be withheld
  3. Iowa - not permitted to be withheld
  4. Missouri - not permitted to be withheld
  5. Oregon- can only be withheld if not tolerated
  6. South Carolina - can not be withheld.
  7. Utah - parental consent required
  8. Wyoming - can not be withheld


LIVING WILL DECLARATION

To my family, doctors and all those concerned with my care:

I, _________________________________________________ , being of sound mind, make this statement as a directive to be obeyed if I become unable to participate in decisions regarding my medical care.

If I should be in an incurable or irreversible mental or physical condition with no reasonable expectation of recovery, I direct my attending physician to withhold or withdraw treatment that merely prolongs my dying. I further direct the treatment be limited to measures to keep me comfortable and relieve pain.

I DO ( ) DO NOT ( ) desire that nutrition and hydration (food and water) be withheld or withdrawn when the application of such procedures would serve only to artificially prolong the process of dying.

In the event that at the time this declaration is being considered I am pregnant, I specifically state that I

  1. Want treatment withheld even though it may result in an abortion. _____________________
  2. Do not want treatment withheld if it will result in an abortion. _________________________

(Cross out inapplicable language and sign on the appropriate line.)

These directions express my legal right to refuse treatment. Therefore I waive any consequent legal liability and expect my family, doctors and everyone concerned with my care to act in accord with my wishes.

I especially do not want: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________


CHAPTER 8

ESTATE PLANNING THROUGH THE USE OF A POWEROF ATTORNEY AND A REVOCABLE TRUST

I. INTRODUCTION

The ultimate in estate planning is cryogenics. Cryogenics is freezing the body of a dead person for future revivification when technology to do so is developed. It is even possible to obtain a "lay away" plan: a person has his head severed and frozen. This is done with the hope that in the future an entirely new body can be cloned and the head attached to it. Whatever happens the person must be declared dead. The question becomes, "What will happen to the body?" Whether or not we come back in reincarnated form or pass to a higher plane of existence, we will nevertheless travel to a realm where no one ever returns. We cannot take it with us. Of course that is not to say that people have not tried to do so. The pharaohs of ancient Egypt, the Mayans in Central America and the Celtic tribes in Europe all attempted and failed to take their worldly goods with them.

So given these truths, what then is left for us to do? Lacking a philosophical bent, this chapter offers only answers for the living. The only answer that makes sense is that if a person cannot take the estate with him, he should give it to those persons for whom he cares at his death. For most people that means simply giving the estate to family members and loved ones. If the estate is going to be given away, it makes sense to give it to loved ones rather than to strangers or the government in the form of unnecessary and avoidable taxes.

The purpose of estate planning is to help a person build an estate as large as possible during life and upon death to pass as much of it as possible to the loved ones. This chapter attempts to educate the user to the advantages of the use of powers of attorney and revocable trusts for estate planning and the avoidance of probate. An estate plan is a general term for the adopted procedure by which a person intends to preserve the assets of his estate during life and distribute them after death. The main considerations in estate planning are possible avoidance of probate, reduction of estate and inheritance taxes and the quick distribution of the estate to the designated heirs.

A complete estate plan will consider methods for the preservation of the estate during life by maximizing income while reducing to the extent possible the amount of income taxes that must be paid. The costs incurred in probating a will are large. A probate is usually one of the most expensive expenditures made by a person. An old joke, wryly true, is that if the person were not already dead the cost of probate would kill him. Probate costs include court fees, appraisal fees, attorney fees and executor fees. Court costs and appraisals are modest, usually a couple of hundred dollars for an average estate. The real costs are for the attorney and executor fees. The maximum amounts of attorney and executor fees are set by statute and approved by the court. They are based on the size of the estate (value of the property to be probated) and increase as the estate increases. In California attorney and executor fees are calculated as follows:

  1. 4% of the first $15,000, maximum $600.
  2. 3% of the next $85,000, maximum $2,550.
  3. 2% of the next $900,000, maximum $18,000.
  4. 1% of the next $15,000,000, and .5% thereafter.

An estate of $100,000 if probated in California, pays maximum attorney and executor fees of $6,300 (to the executor $3,150 and to the attorney $3,150). These are maximum fees. The attorney and executor can agree to take less or no fee at all.

The avoidance of probate fees is a major inducement for implementing an estate plan. When a revocable trust is employed, there are no probate fees because the estate passes immediately to the designated beneficiaries in the trust. No court proceeding is needed to transfer the property of a trust; so no attorney is needed. There are several means available to a person to avoid probate. The probate avoidance vehicles include:

  1. Summary probate proceedings, if available, in the decedent's state. A summary probate is an abbreviated procedure for small estates or when the entire estate goes to the surviving spouse. Many states have adopted special procedures to bypass the expense and long delay of probate.
  2. Giving the estate away while alive.
  3. Placing the property into joint tenancy with the proposed heirs. On death title to the property passes immediately without probate by the recordation of a notice of the death of a joint tenant.
  4. Placing the estate into a revocable trust that passes the estate to the designated beneficiaries immediately on the decedent's death. This is the most popular form of estate planning because it is fast and retains the maximum amount of control over the estate and property.

In order to determine the type of estate plan best suited to an individual, the person must fully understand the size of the estate, how he wishes to distribute it and the amount of control he wishes to relinquish to operate the estate plan.

Accompanying this book is a two-volume set of estate planning books. The first volume deals with probates and will drafting. The second book deals entirely with revocable trusts and contains the most complete and user-friendly do-it-yourself revocable trusts on the market. The trusts themselves are easy to use and are designed so the user merely fills the blanks. Thereafter, it is simply a matter of changing titles to the deeded property. Forms for the transfer of such property are also included in the books.

II. REVOCABLE TRUSTS: GENERAL INFORMATION

A revocable trust is usually the best means of estate planning. The creator of the trust called the trustor, places his entire estate into the revocable trust. The trustor usually is also the trustee, the person who manages the estate and the prime beneficiary. Upon the trustor's death, the person named in the trust document as the successor trustee takes control immediately without court approval being needed. Depending on the terms of the trust, the new trustee either dissolves the trust and distributes the assets immediately in the manner designated in the trust document or continues to operate the trust in the manner directed by the trust document.

Since there is no probate, there are no probate costs incurred. The savings for the estate when a revocable trust is used will usually be several times the cost of the creation of the trust. Because the trust is revocable, the trustor can at any time alter, amend or revoke it. If the trust is revoked, the trust assets immediately return to the trustor.

A standard estate plan includes the revocable trust, durable power of attorney, living will, and pour-over will and costs $500 to $1,100, depending on the type of trust needed to accomplish the trustor's intent. Different trusts are used depending on whether or not the grantor is single or married and with or without children. A special alternative is a joint trust between spouses. Special trusts such as life insurance trusts, generation skipping trusts or charitable trusts can also be part of an estate plan and obviously will increase its cost.

All 50 states and the federal government accept a revocable trust as valid. If the trust was created and valid in the original state, all other states will honor and enforce it. Provisions can also be placed into a trust document stating that the terms of the trust are to be administered by the laws of a certain designated state. If so, all states will apply the laws of the designated state in administrating the trust. Even if the trustor moves to another state, the trust will still remain valid and in effect.

III. FEDERAL ESTATE AND GIFT TAXES

The federal estate and gift tax rate is graduated and increases as the size of the estate increases over the unified credit. Example: A taxable estate of $100,000 has a tax of $23,800, an estate of $250,000 has a tax of $70,000 and an estate of $500,000 has a tax of $155,800. A taxable gift of $2,500,000 has a tax of $1,025,800.

A. UNLIMITED MARITAL DEDUCTION

Under federal law there is no federal gift or estate tax on property transferred between spouses. This is an unlimited credit that has only two specific requirements:

  1. It must be an actual gift. If the gift is in trust then all of the income must go to the spouse.
  2. The spouse receiving the gift must be an American citizen.

Gifts to a noncitizen spouse are not eligible for the unlimited deduction but are eligible for a $100,000 annual exclusion under Section 2523 of the Internal Revenue Code. Property passing from an American spouse to an alien spouse after death does not qualify for an unlimited marital deduction. Special tax rules apply for such transfers and an attorney specializing in tax law should be consulted if the estate of the American spouse exceeds $600,000.

A person can generally pass his entire estate to a surviving spouse without incurring any federal estate taxes. This may not ultimately be the best estate planning. If the property given to the surviving spouse boosts the surviving spouse's estate over $600,000, the surviving spouse's estate will have to pay estate taxes. Any gift to a surviving spouse that will boost his estate over $600,000 should be made after first exhausting the donor's unified credit which is discussed below.

B. UNIFIED CREDIT FOR GIFTS OR ESTATES

Every person is permitted to transfer assets totaling $600,000 by either gift or death without incurring a gift or estate tax under federal law. A person can give $275,000 in gifts while living and pass an estate of $325,000 after death without the estate having to pay any federal gift or estate taxes.

Nearly half of the states impose their own estate and inheritance taxes. These taxes must also be a consideration in estate planning. The Internal Revenue Code permits a small credit for state death taxes to be applied against the federal estate. The significance of the $600,000 unified credit is that it permits a husband and wife to give to their children a total combined estate of $1,200,000 before incurring any estate taxes. A person giving his entire estate to a surviving spouse is not taking advantage of the unified credit. Not using the unified credit is ill-advised when the surviving spouse's estate exceeds $600,000.

C. ANNUAL EXCLUSION FOR GIFTS

Under federal tax law every individual may make an annual gift of $10,000 per year per person without incurring a gift tax or having the gift applied towards the $600,000 unified credit. A parent having four children can give $10,000 to each for a total of $40,000 free of gift taxes. The advantage of making these gifts is that they reduce the size of the estate below $600,000 and thus reduce if not eliminate federal estate taxes.

An alien spouse does not qualify for the unlimited marital deduction. In place of the unlimited marital deduction, an alien spouse is permitted to receive $100,000 per year tax-free as a gift from the other spouse.

D. GIFT TAX ON CREATION OF TRUST

If the trust is revocable, there is no gift tax because the trustor can always revoke it. All income is still taxed to the trustor. If the trust is irrevocable and the trustor is the beneficiary, there is no gift tax because the trust is still for the trustor's benefit. Such a trust is called a grantor's trust, and all trust income is taxed to the trustor. If the trust is for the spouse, there is no gift tax because of the unlimited marital deduction. If the trust if for someone other than the trustor or the trustor's spouse, the general rule is that a gift tax is owed. The gift tax must either be paid or deducted from the unified credit or annual exclusion.

IV. BASIC TYPES OF REVOCABLE TRUSTS

A. JOINT TRUSTS

A common estate plan is for both spouses to create one joint revocable trust. In the joint trust both spouses place all of their property into the trust. The spouses' property is listed on schedules marked his, hers, and theirs. On the death of the first spouse, the trust is divided into separate trusts for the surviving spouse and the children or heirs. This joint trust is usually the most economical estate plan because it plans for both estates. The cost of doing the joint estate plan is invariably less than the cost to do a separate estate plan for each spouse.

The trust is totally revocable during the joint lifetimes of the spouses. Either spouse may terminate it at any time. Upon the death of the first spouse, the trust usually becomes irrevocable regarding the property of the deceased spouse, but the surviving spouse's trust is usually still revocable by the survivor. This type of trust gives the spouses maximum control over their assets and is flexible, accommodating changes in the surviving spouse's life following the death of the first spouse.

B. AN A-B TRUST

The "A-B trust" is the common name given to the general type of revocable trust used by a married person with children and trust estate exceeding $600,000. It is also called a "marital trust" or a "by-pass trust." The trust exists for the benefit of the trustor during his life. At the trustor's death, the trust is divided into two parts. All or the remainder of the decedent's $600,000 unified credit is placed into the B trust and the rest of the decedent's estate is placed in the A trust.

The sole beneficiary of the A trust is the surviving spouse. The surviving spouse has ownership of the A trust and usually has the power to terminate it and receive the assets in her own name. Since assets in the A trust go to the wife, there is unlimited marital deduction if the spouse is a U.S. citizen: therefore no federal estate taxes. On the surviving spouse's death all of the property in Trust A is included in the surviving spouse's estate for calculation of estate taxes. For example, assume that the husband died and his two million dollar estate was divided $600,000 to Trust B and $1,400,000 to Trust A. On the wife's death, Trust A has grown to $1,700,000, and the wife had $500,000 of her own estate. For tax purposes, the wife's taxable estate will be $2,200,000 minus her $600,000 unified credit: $1,600,000.

If $800,000 was originally placed into Trust B, the excess $200,000 would be taxable. After the taxes are paid no additional estate taxes will be charged against it upon the death of the wife.

The beneficiaries of the B trust are the children. Income may be applied to the surviving spouse, but the trust does not qualify for a marital deduction. It does qualify for a deduction to the extent of the trustor's unused $600,000 unified credit. There is no federal estate tax for this trust either. If the assets in Trust B have increased to $1,000,000 at the time of the wife's death, no estate taxes will be due because the property placed into the Trust was originally tax-free.

C. A QTIP TRUST

A QTIP Trust is a special trust whereby the trustor's spouse is given all of the income from the trusts with the principal being distributed to others, usually the children or grandchildren when the surviving spouse dies. QTIP stands for Qualified Terminal Interest Property and is a fancy name for property given to spouse in a certain type of trust.

A QTIP Trust gives the option to the surviving spouse to have the trust property treated as a gift to the surviving spouse for estate tax purposes. If the election is made, the total value of all the trust will be treated as a spousal gift and exempt from tax under the unlimited marital deduction. When the surviving spouse's dies, the value of the trust assets will be included in the surviving spouse's estate for determination of the surviving spouse's estate tax.

Depending on the size of the surviving spouse's estate it may or may not be good financial planning to make the QTIP election and have the value of the trust included in the surviving spouse's estate. Example: The surviving spouse's estate is $100,000, and the QTIP Trust is $1,000,000, and the unified credit of the

deceased spouse had previously been used. Making the election saves the trust from paying federal estate taxes until the surviving spouse dies. Meanwhile, the surviving spouse can draw a higher interest from the investment of the pre-taxed $1,000,000. The disadvantage is more tax may ultimately be paid on the death of the surviving spouse than would have been paid if no election had been made, if the surviving spouse's estate grows greatly after making the election.

D. A GENERATION SKIPPING TRUST

A generation skipping trust is a trust that skips one or more generations. A trust by a grandparent for grandchildren that bypasses (misses) the parents is a generation skipping trust. The main exception is that it is treated as a direct trust when there are no parents surviving the grandchildren. A generation skipping trust is complicated tax-wise. It is easy to create, but a generation skipping trust should not be created without first consulting a tax attorney because of the inherent tax consequences. Generally, one million dollars can be placed in a generation skipping trust without incurring an estate or gift tax (provided the uniform credit was not used previously).

One million dollars may be transferred into a generation skipping trust tax free. Any amount placed in the trust over one million dollars is taxed at a rate of 50% whenever a distribution is made. A distribution is deemed to have been made when the parents of the grandchildren die or the grandchildren receive money from the trust. The purpose of this law is to avoid amassing huge estates by not paying taxes. These trusts only affect very wealthy people.

The tax consequences of a generation skipping trust are so great that no one with over $600,000 should consider funding one without first speaking with a tax attorney.

V. CREATION AND OPERATION OF A TRUST

A trust is easily created. The trust document is drafted by an attorney and directs how the trust estate will be administered and distributed. The trustee acts in accordance with the terms of the trust. The trustor and trustee must both sign the trust document. If the trustor is also the trustee, he signs the trust agreement twice (in both capacities).

The final requirement is that the trust be funded. The trustor places in the trust all of the property the trustor wishes to be in the trust to fund the trust. All the property of the trustor can and should be placed into the trust. Anything that is not in the trust must be probated unless it is joint tenancy property or insurance policies with designated beneficiaries other than the decedent's estate or qualifies for summary probate proceedings in some way.

Any property that has a title must have the title specifically recorded in the name of the trust. Merely stating in the trust agreement that such titled property is to be placed in the trust is insufficient legally to put the property in the trust. Since a home has a title document, the title must be changed to make the owner the trust. A quitclaim deed by the trustor to himself as trustee of the trust must be executed and recorded. This is simple to do and usually is done when the trust is created.

Placing a piece of real property in a trust should not trigger a reassessment of property taxes because the transfer is not really a sale or conveyance of the property. The property is put into a revocable trust that the owner can terminate at any time and receive back. California law specifically states that merely placing real property in a revocable trust for estate planning purposes does not trigger reassessment as long as the grantor is alive. Reassessment occurs when there is a change of ownership. Placing the real property in a revocable trust is not really a change in ownership because the trustor still controls it and can, at any time, have the property returned to him.

Personal property that does not have a title (such as a television or furniture) is transferred automatically by a statement in the trust document stating the intent of the trustor to put into the trust all personal property wherever located. Property that has a title (such as a house) must have the title specifically changed to make the trust the owner. Merely stating an intent to place the house or other property that has a title into a trust is insufficient. The only way to put property that has a title into a trust is to change the title on the property so that the trust is listed on the title documents as the owner.

Property once placed in a trust is sold and treated like any property that is not in a trust: all that is needed to sell real property from a trust is a deed executed by the trustee. The trustee merely signs the deed as the representative for the trust and the title is passed upon recordation. Example: The deed from the trustee will read: "John Doe, trustee of the John Doe Revocable Trust hereby deeds, conveys, sells, and transfers to John Smith all right, title and interest in the following property."

A revocable trust is considered for tax purposes to be a grantor trust. A grantor trust is a type of trust created for the benefit of the person creating it. All of the income from the trust is attributed to the grantor as long as he is alive. The grantor remains liable for the income taxes. A revocable trust does not save the grantor any money on income taxes because it is not designed to do that. A revocable trust exists to avoid probate and save estate taxes, not income taxes.

A trust can be made irrevocable and sometimes it is good

financial estate planning to do so. In order for assets in a trust not to be included in a trustor's estate, the trustor must not have control over the trust or the reasonable expectation that the trust will revert back to the trustor. If the trust is revocable, the trustor has a great deal of control over the trust, and the fair market value of the trust assets will be included in the trustor's estate upon death for estate tax calculations. If the trust is made irrevocable and the trustor has no control over the trust, when he dies the assets in the trust including all appreciation in value will not be included in the trustor's estate. This could pass a great deal of appreciation to the trustor's heirs without having it taxed. It is because a life insurance trust is irrevocable that the proceeds of the insurance on the decedent are not included in his estate.

A revocable trust does not need to be recorded. Unlike a will, it is a private document. The only documents that need recordation are the deeds transferring real property into the trust. In some states, a revocable trust is required to be registered with the probate court. To register, a short statement is filed listing the trustee and giving some basic information. Registration gives the court jurisdiction to oversee the trust. There are no penalties for failure to register. The states requiring registration are Alaska, Colorado (after the death of the grantor but no registration is required if there is an immediate distribution to the beneficiaries), Florida, Hawaii, Idaho, Maine, Michigan, Nebraska, New Mexico and North Dakota.

XIII. JUDICIAL REVIEW OF A TRUST ADMINISTRATION

Many fear that the trust will be mismanaged, and no one will be able to stop it. This is not true. All states permit concerned persons to petition the court for review of the administration of a trust. A trustee is a fiduciary and owes both the trust and the beneficiaries a fiduciary duty to act reasonably and responsibly. If the court finds that a trustee has breached his duty of care, it will remove the trustee and surcharge (find the trustee liable) for all of the damage caused by the trustee's misconduct.

Even if the trust document states otherwise, probate courts always have the power to review the actions of a trustee. The court will never permit a trustee to misuse the faith and power of his position and hide behind the trust document to avoid judicial scrutiny. Anyone, not just the beneficiaries, can take their suspicions of abuse to the court, and the court will investigate. In Bakersfield, California an attorney conspired with a trustee to raid an elderly woman's trust. Neighbors expressed their concern to the court. The court investigated. Ultimately, the attorney was sentenced to seven years in prison. The defense argued that everything was done in accordance with the terms of the trust, but the defense was not persuasive.

XIV. TRUSTEE

The original trustee of any revocable trust invariably is the grantor. Since the grantor of any revocable trust retains the unlimited power to alter or revoke the trust, the grantor can therefore do anything that he wants to do with the trust. When the grantor dies or resigns as the trustee, then a successor trustee takes over. Most trusts contain clauses that state who the successor trustee will be and retain the power for the grantor to appoint a successor trustee. When there is no successor trustee, the probate court having jurisdiction over the trust will appoint the successor trustee. No trust will ever fail just because there is no trustee.

A trustee can always resign. The trustee is replaced just as though the trustee had died. Most trust agreements contain a list of proposed successor trustees to replace dying or resigning trustees. If the trust does not provide for a successor trustee and the trustor is dead or did not retain the right to amend or revoke the trust, the probate court will appoint a trustee. Before a trustee can resign, he (unless the trustor is the trustee) will be required to provide a full accounting of the trust business. All of the beneficiaries may together waive the accounting.

Normally, the trustor waives bond for any trustee or successor trustee named in the trust document. If a trustee bond is required, it is paid by the trust and thus diminishes the trust estate. If the trustor did not have faith in the named trustees, then they should not have been named. In the event of a court appointed trustee, the court will require a bond unless all of the beneficiaries agree to waive it.

Most trusts require the trustee to make annual accountings of the trust assets unless the grantor is the trustee or all the beneficiaries waive them. Any one concerned person (not just a beneficiary who feels that the trust is being mismanaged) can seek a court order directing the trustee to perform an accounting. The court can order an accounting even if the trust agreement waives them. A major concern of many people is that a trustee will take or otherwise mismanage the trust assets and the beneficiaries will be helpless. This is never the case. The probate court always has jurisdiction to oversee every trust, whether or not such jurisdiction is described in the trust document. No court will ever let a trustee intentionally mismanage or steal trust assets. Anyone, not just beneficiaries, can raise their concerns to the court, and the court will order a hearing to investigate the matter.

Most trusts have language for a successor trustee to replace a trustee who becomes unable to perform the duties. This may cause problems when the trustee is the trustor and does not believe himself to be incompetent. To alleviate the problem, many agreements permit evaluation of the competency of the trustee on request. If a court adjudges a person incompetent, the successor trustee will take charge immediately.

XV. USE OF A REVOCABLE TRUST TOGETHER WITH A DURABLE POWER OF ATTORNEY

A durable power of attorney for health care should always accompany the execution of a revocable trust. The revocable trust will take care of the trustor's estate during the remainder of his life and pass the property after his death. Complementing the trust is the durable power of attorney for health care that determines medical care of the principal should he become mentally incompetent, A durable power of attorney for financial affairs is needed to manage property not included in the trust; otherwise, a conservatorship or guardianship must be created to manage the property once the principal becomes incompetent.

All states have come to realize that it is not always necessary to require a conservator or guardian for an incompetent if the person has provided for protection during this eventuality. All states have adopted either the Uniform Durable Power of Attorney Act or the Uniform Probate Code. Each of these acts permits a person to grant an attorney in fact the power to act on the principal's behalf, including the making of health care decisions, after the principal has become mentally incompetent.

The purpose behind executing a durable power of attorney is to avoid creation of a conservatorship should he subsequently become incompetent. The cost of such a conservatorship is normally around $2,000. The conservator is required to file annual or biannual accountings with the court. Durable powers of attorney permit the principal to provide for the possibility of his own mental incapacity without having to go through an expensive, cumbersome and prolonged judicial proceeding.


INDEX

Definition of powers of attorney . . . . . . . . . . . .. . . . 22

Durable powers of attorney . . . . . . . . . . . . . . . . . . 58

Financial affairs . . . . . . . 65