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Trust Services

Durable Power of Attorney

A Durable Power of Attorney is a document which is used to delegate legal authority to another person (the "agent" or "attorney in fact") to act on behalf of the grantor (the "principal").

By including certain statutory-required language in the document, the agent's authority will remain valid even if the principal subsequently becomes incapacitated. Thus, the Durable Power of Attorney is an inexpensive alternative to a court-supervised guardianship or conservatorship which is necessary for a person who becomes incapacitated without preplanning. A Durable Power of Attorney allows the principal, rather than the court, to choose the caretaker of his person and property upon terms designed by the principal. In a Durable Power of Attorney document, the principal can give his agent a range of powers from a very limited action-specific power to a comprehensive laundry list of powers.

The principal decides whether the granted powers in the document are effective immediately or become effective upon the happening of a triggering event such as a letter by the principal's personal physician that the principal is now incapable of handling his own affairs. If the power is immediately effective, the principal and attorney-in-fact share immediate, co-equal powers to the extent those powers are granted in the document. A power, which becomes effective upon a trigger event is advantageous if the principal fears that the agent will act prematurely.

Typically, the principal selects a relative or close friend as his agent. It is imperative that the agent is trustworthy and conscientious as the agent could use the powers to the disadvantage of the principal. The principal should also discuss the nomination with his agent in order to determine the agent's willingness to serve. The principal may name a successor attorney-in-fact in the event his first choice dies, ceases to act or resigns.

The document may state that the power terminates upon a specific date or event. If the principal is not incapacitated, he may revoke the power of attorney at any time. The power always terminates at the death of the principal.

To obtain a Durable Power of Attorney, consult with an attorney who will draft a need-specific, individualized document and insure that the document is signed according to Oklahoma legal requirements.