Durable Powers of Attorney – Part III

The durable power of attorney can be an effective and efficient alternative to the guardianship process. However, it simply is not a foolproof method to ensure guardianship may not be necessary.  There are times that a third person presented with the power of attorney may have a basis to refuse to accept the document (see prior blog post for more details).  Moreover, the document may not meet certain statutory requirements which render it unenforceable.

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The signature on the power of attorney must be authentic.  The power of attorney does not have to be witnessed or notarized. However, a signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary publicOtherwise, someone can challenge the authenticity of the signature.  

A Certification of Competency must be attached in certain circumstances.  If the person executing the power of attorney (the “principal”) resides in a hospital, residential facility for groups, facility for skilled nursing or home for individual residential care, at the time of execution of the power of attorney, a certification of competency of the principal from a physician, psychologist or psychiatrist must be attached to the power of attorney. Otherwise, the document will be invalid.

The power of attorney must name an eligible party as the agent. The principal may not name as agent in any power of attorney for any purpose: (a) the hospital, assisted living facility or facility for skilled nursing;  (b) an owner or operator of the hospital, assisted living facility or facility for skilled nursing; or (c) an employee of the hospital, assisted living facility or facility for skilled nursing, UNLESS the person is the spouse, legal guardian or next of kin of the principal; or named only for the purpose of assisting the principal to establish eligibility for Medicaid.

As a result, a consultation with an experienced estate planning attorney can ensure that these and other possible disqualifications are avoided.  For more information, please do not hesitate to contact our Las Vegas law firm at (702) 798-4955.