Power of Attorney

Why would I need a power of attorney?

 

If you are unable to act on your behalf for reasons, such as physical distance, illness, or disability, a power of attorney would enable the person who you select to act on your behalf, your agent, to make legally binding decision for you.  Depending on the scope of a power of attorney, a power of attorney may give an agent authority to engage in tasks, including, but not limited to, the following:  (1) handling banking transactions, (2) settling claims, (3) entering into contracts, (4) entering safety deposit boxes, (5) filing tax returns, (6) buying or selling property, and (7) handling matters related to government benefits.

 

What is a durable power of attorney?

 

In order for a power of attorney to be classified as a durable power of attorney, Miss. Code Ann. § 87-3-105 requires certain language to be included in the document.  A durable power of attorney must contain a statement similar to one of the following statements:  “This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time,” or “This power of attorney shall become effective upon the disability or incapacity of the principal.”  In other words, the document must clearly indicate that lapse of time, unless the document specifies a termination date, or subsequent disability or incapacity does not impact the authority granted by the document.

 

What are the requirements for a power of attorney to be valid?

 

First, the principal, the person who is authorizing someone to act on his or her behalf, must be mentally competent when he or she signs the document.  In order to be determined to be mentally competent, the principal must understand the powers that he or she is granting to his or her agent and the effect of granting such authority.  Second, as previously mentioned, the document must be signed by the principal.           

 

Who should I select to be my agent?

 

The law does not require that a certain person be selected as your agent.  It is a personal choice.  However, you should select a trusted friend, relative, or business associate who will act in your best interest. 

 

Can I revoke an existing power of attorney?

 

A number of steps should be taken to ensure that a power of attorney is successfully revoked.  First, you should inform the agent and request that all copies of the power of attorney be returned.  Second, you should notify all relevant businesses and/or individuals about the revocation.         

 

Does the death of a principal revoke a power of attorney?

 

Generally, the answer is yes.  However, Miss. Code Ann. § 87-3-111 provides that the acts of an agent can continue to bind the principal’s successors in interest in some cases.  If an agent or third party acts in good faith and does not have actual knowledge of the death of the principal, the actions of the agent continue to bind the successors in interest of the principal.

 

Does subsequent disability or incapacity revoke a power of attorney?

 

If a power of attorney is not a durable power of attorney, Miss. Code Ann. § 87-3-111 provides that the acts of an agent can continue to bind the principal and his successors in interest in some cases.  If an agent or third party acts in good faith and does not have actual knowledge of the disability or incapacity of the principal, the actions of the agent continue to bind the principal and the successors in interest of the principal.

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