A common fear is that your durable power of attorney for finances will not be accepted by those around you. While rare, challenges are sometimes raised by people who feel you were not of sound mind when you signed the document or who fear that the document is not legally valid.
You must be of sound mind when you create your durable power of attorney for finances. When you sign the document, no one makes a determination about your mental state. The issue will come up only if someone goes to court and challenges the durable power of attorney, claiming that you weren't mentally competent when you signed it. That kind of lawsuit is very rare.
Even in the highly unlikely event of a court hearing, the competency requirement is not difficult to satisfy. If you understood what you were doing when you signed your durable power of attorney, that's enough. To make this determination, a judge would probably question any witnesses who watched you sign the document and others who knew you well at the time. There would be no general inquiry into your life. It wouldn't matter, for example, that you were occasionally forgetful or absentminded around the time when you signed your power of attorney document.
It's reasonable for someone to want to make sure that your durable power of attorney is still valid and hasn't been changed or revoked. To reassure other people, your attorney-in-fact can show that person the power of attorney document. To lay any fears to rest, it clearly states that any person who receives a copy of the document may accept it without the risk of legal liability—unless he or she knows that the document has been revoked.
Laws in most states also protect people who rely on apparently valid powers of attorney. For example, many states have laws stating that a written, signed power of attorney is presumed valid, and a third party may rely on it.
As a last resort, the attorney-in-fact can sign a sworn statement or affidavit in front of a notary public, stating that as far as he or she knows, the durable power of attorney has not been revoked and that you are still alive. Most states have laws that make such a statement conclusive proof that the durable power of attorney is in fact still valid.
Any other person who relies on a durable power of attorney must be sure that the attorney-in-fact has the power he or she claims to have. That means the person must examine the document to see what power it grants.
Nolo's Durable Power of Attorney is very specific about the attorney-in-fact's powers. For example, if you give your attorney-in-fact authority over your banking transactions, the document expressly states that the attorney-in-fact is empowered to write checks on your behalf. Your attorney-in-fact can point to the paragraph that grants that authority, so a doubting bank official can read it in black and white.
An attorney-in-fact who runs into resistance should seek, politely but insistently, someone higher up in the bureaucracy.
If you think someone is likely to challenge the legitimacy of your durable power of attorney, you can take several steps to head off problems:
An experienced estate planning lawyer can answer questions about your durable power of attorney and about your other estate planning documents as well. For example, you may also be expecting challenges to your will, a trust or health care wishes. The lawyer can put your fears to rest by answering your questions and reviewing or modifying your documents. He or she can help to ensure that your estate plan will hold up under the challenges of your stubborn relatives. Your attorney can also testify about your mental competency, should the need arise.
You can sign your document in front of witnesses, even if your state does not require it. After watching you sign, the witnesses themselves sign a statement that you appeared to know what you were signing and that you signed voluntarily. If someone later challenges your competency, these witness statements will be strong evidence that you were of sound mind at the time you signed your document.
You may also want to get a doctor's statement around the time you sign your durable power of attorney. The doctor should write, date and sign a short statement saying that he or she has seen you recently and believes you to be mentally competent. You can attach this statement to your power of attorney document. Then, if necessary, your attorney-in-fact can produce the statement as evidence that you were of sound mind when you signed your power of attorney.
You can also use video to record a statement of your intent to make and sign the durable power of attorney. However, using video could work against you if it shows any visible quirks of behavior or language that could be used as evidence that you were not in fact competent when you made your document. If you do make a video, keep a copy of it with your power of attorney document.