The dictionary defines "attorney" as "one who is legally appointed to transact business on another's behalf" which is to say, an agent. A lawyer is an "attorney-at-law."
A "power of attorney" is a statement by a "principal" authorizing someone to act as agent for him. That statement must be written if it deals with real estate.
At common law, (derived from judicial decisions and custom, as contrasted with statutory law created by legislative bodies) a power of attorney was effective only while the principal was capable of acting. If Charlie gave John a power of attorney to attend the closing and sign papers for the sale of his house, and Charlie had a heart attack and was in a coma, John could not act, because, as Charlie's agent, he could do only what Charlie could do. When most needed, the power of attorney was useless.
By statute, if a power of attorney contains the words "This power of attorney shall remain in force notwithstanding the disability of the principal" or something similar, the power of attorney is "durable" and will continue. Most powers of attorney that are granted today have the magic "durable" language.
A power of attorney is effective as soon as it is signed and delivered to the agent. A "springing power" provides that the power of attorney will not be effective until the happening of a certain event usually the disability of the principal.
The problem with the "springing power" is that the person to whom it is presented by the agent may have difficulty in accepting that the principal is disabled and that the power has "sprung." The power of attorney is only as good as its acceptance by the person to whom it is presented, and if he or she is not satisfied with the proof that it has sprung, it is of no value. I do not use springing powers.
If the principal wants conditions on the power of attorney, he can arrange for someone to hold it in escrow and release it when the limitations have been met.
We will present a discussion for anyone who is interested at Rockland Trust on September 28 from 9 a.m. to 10:30 a.m. Details on our website. You are invited!
