Durable Power of Attorney/More Info


  Durable Power of Attorney 
 Additional Information 

Revoking A Durable Power 
Like any other power of attorney, the grantor may later decide to revoke the authority.  To revoke a Durable Power of Attorney, use the Notice of Revocation of Power of Attorney found in this program. 

Important Tip 
Some people make a durable power of attorney for the purpose of dealing with estate planning issues.  In particular, many have created a durable power of attorney to allow someone else to make gifts of the grantor's property in an effort to reduce the amount of estate taxes that will ultimately be paid when the grantor dies. 

The Internal Revenue Service has ruled, however, that the attorney has the right to make gifts only if specifically stated in the durable power of attorney document or if state law specifically allows making such gifts.  Having the appropriate power to make gifts may also protect the attorney from arguments among family members.  The commonly recommended language to include is:  "The attorney has the power to make gifts in the pattern I have used during my lifetime", or words to that effect. 

Because the person appointed as the attorney may be a relative of the grantor, the attorney may find himself in the questionable position of making gifts to himself.  You may want to grant your attorney the right to make gifts to himself for estate planning or other reasons.  Many lawyers recommend that if an attorney may make gifts to himself, the power of attorney should include a requirement that the attorney must have prior approval before making the gift or limit the amount of gift that the attorney can make to the gift tax annual exclusion in effect at the time of the gift (which is $11,000 in 2003, but adjusted annually for inflation).  For example, the Grantor may require that the attorney must have the prior approval of the beneficiaries named in the Grantor's will. 

Your state law may require your Durable Power of Attorney be notarized in order to be effective.  Most commonly, a Notary's acknowledgment is required to if your attorney will be handling any real estate matters.  This Durable Power of Attorney includes a notary's acknowledgment section.  When in doubt, have the Durable Power of Attorney notarized to avoid challenges to the authority. 

This document also includes two common options for you to consider: 
1) You may choose to make this Durable Power of Attorney effective immediately upon your signature, or choose to make it effective only if you later become disabled. 
2) You may designate whether your attorney may be compensated for his or her services. 

You may also want to compare this Durable Power of Attorney to the General Power of Attorney.  The General Power of Attorney provides only a single broad grant of authority.  The Durable Power of Attorney makes a general grant of authority, and follows it with specific grants of authority.  This helps to avoid arguments between the grantor and the attorney, or the attorney and third parties, that a power was not genuinely granted.  The courts will generally construe the specific grants as confirming the general grant of authority, rather than limiting it.