This is a power of attorney that remains valid despite the disability of the principal. Such a power is created by a statute which sets forth the language to be used. There are two forms. One for health care and personal matters and one for property and financial matters. These can be used to avoid a guardianship for a disabled person if the person creates them before becoming disabled. In view of the cost and limitations of a guardianship this is a very useful device. The person appointed agent however, must be absolutely trustworthy because they will be acting without court supervision. While anyone can petition a court to open a guardianship and revoke the power, that may be done too late to protect the disabled person's assets.
The powers of the agent under the basic durable power of attorney are limited and do not include powers to make gifts or transfers to trusts or certain other things that are often done in estate plans and when changing estate plans as circumstances change. However, these powers can be added to the power of attorney and often are.
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