A durable power of attorney is only an effective alternative to guardianship if a third party will recognize the document. It is important to understand what options the third party has when presented with the durable power of attorney.
Is there any other documentation that may be required besides the power of attorney? Maybe. A person presented a power of attorney may request without further investigation (a) a certification under penalty of perjury by the agent of any factual matter concerning the principal, agent or power of attorney; or (b) an opinion of counsel as to any matter of law concerning the power of attorney if the person making the request provides in a writing or other record the reason for the request. If you are informed they are requesting a certification of an opinion of counsel, don’t panic. Our law firm can easily assist you with the preparation of either of these documents.
Is there a timeline by which the power of attorney must be accepted? A person must either accept an acknowledged power of attorney, or request a certification or an opinion of counsel not later than 10 business days after presentation of the power of attorney for acceptance. Moreover, a person may not require an additional or different form of power of attorney for authority granted in the power of attorney presented.
Must the durable power of attorney be accepted? No, a person is not required to accept an acknowledged power of attorney if:
(a) The person is not otherwise required to engage in a transaction with the principal in the same circumstances;
(b) Engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with federal law;
(c) The person has actual knowledge of the termination of the agent’s authority or of the power of attorney before exercise of the power;
(d) A request for a certification, a translation or an opinion of counsel pursuant to NRS 162A.360 is refused;
(e) The person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation or an opinion of counsel has been requested or provided pursuant to NRS 162A.360; or
(f) The person makes, or has actual knowledge that another person has made a report stating a good faith belief that the principal may be subject to abuse, neglect, exploitation or isolation by the agent or a person acting for or with the agent.
What can be done if the third party unreasonably refuses to honor the power of attorney? A person that refuses to accept an acknowledged power of attorney is subject to: (a) a court order mandating acceptance of the power of attorney; and (b) liability for reasonable attorney’s fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.
In our next post we will discuss when a durable power of attorney may be invalid and the importance of using an experienced attorney to assist you with the drafting and execution process. For more information, please do not hesitate to contact our Guardianship Lawyers in Las Vegas at (702) 798-4955.