A single principal may name one or more agents who can be authorized
to act either “jointly” or “severally” (alone without the signature of
the other agent or agents).
The “durable” power of attorney is unlike the ordinary power of
attorney in that it does not become inoperative upon the incapacity of
the principal. The durable power of attorney, provides that those
powers granted to the agent shall not be affected by the subsequent
disability or incapacity of the principal or by the lapse of time.
In drafting powers of attorney, care should be given to confer powers
with as much specificity as possible in order to avoid the possibility
of a court construing a specific omission as an intent to fail to
grant that specific power. Such an adverse finding could be a serious
detriment to the principal’s assets. The power of attorney for asset
management in the case of a seriously ill or disabled person is
especially useful in situations where the person’s assets may be
modest and, accordingly, do not warrant the expense associated with
other planning techniques such as trusts or guardianships.
The great advantage of the durable power of attorney is that it
remains in effect after the principal’s incapacity. The agent,
therefore, can act immediately upon the principal’s incapacity to
manage his assets or to take various measures without initiating
costly and time consuming guardianship proceedings to obtain the
court’s authorization for such transactions.
In a few states, the principal is allowed to delegate to the agent in
the durable power of attorney various health care powers in addition
to control over financial matters. In New York State, however, a
health care power of attorney or proxy must be a separate document
from a power of attorney.