A durable power of attorney is a legal document that allows another person to speak or act on your behalf. That person is your “agent” or “attorney in fact.” The two types are the health care and financial power of attorneys.
The first appoints a health care agent if you become incapacitated or unconscious and is like a “living will” because it can inform your doctor of the type of treatments you do or don’t want, as well as appoint an agent. The second, the financial power of attorney, allows your trusted, appointed agent to do things like write checks, manage your assets, or sell real estate on your behalf. This document can be immediately effect or only spring into action once a doctor determines you’re incapacitated, such as you have dementia.
Alabama, like the other states, has state laws that regulate how a durable power of attorney can be created, revoked, and what can be included. The following table contains the main Alabama laws on health care Durable Powers of Attorney.
|Code Section||Alabama Code Section 26-1-2: Durable Power of Attorney|
|Agent Authority||Agents can authorize the providing, withholding, or withdrawal of life-sustaining treatments or artificially provided nutrition or hydration, and make all other health care decisions.
Agents aren’t subject to criminal prosecution or civil liability for their actions as agent, as long as they’re acting under a valid power of attorney that they didn’t try to falsify, forge, conceal, amend, or revoke without consent of the principal. If they do try any of those fraudulent acts, they can be subject to both civil and criminal penalties.
|Legal Requirements for Durable Power of Attorney||The durable power of attorney must designate another as his or her agent in writing with the words:
"This power of attorney shall not be affected by disability, incompetency, or incapacity of the principal."
"This power of attorney shall become effective upon the disability, incompetency, or incapacity of the principal.”
The second option is one that permits the document to become valid only upon the creator’s incapacity. Similar words showing the intent that the power of attorney conferred are exercisable after the principal's subsequent disability, incompetency, or incapacity will also work.
|Revocation of Durable Power of Attorney||It’s possible to revoke your Durable Power of Attorney. You may wish to do this when a family conflict occurs or when your appointed agent and any successor agents pass on, move far away, or decided they don’t want to do it.
You can revoke a power of attorney by executing a written revocation signed and dated by yourself or another at your direction, or obliterating, burning, tearing, or otherwise destroying or defacing the document in a way indicating your intention to cancel the document. You can also do it verbally by expressing your intent to revoke the document in front of a witness over 19 years old who signs and dates a written document confirm your desire to revoke the document.
A common time to change your durable power of attorney is upon marriage, when you previously had a parent as your agent, but now wish your spouse to be your health care agent. Any authority given to a spouse under a durable power of attorney is automatically revoked upon divorce or legal separation.
|Validity from State-to-State||These health care directives prepared in other states are valid if in compliance with Alabama law or the law of the state created in. However, Alabama won’t authorize the administration, withholding, or withdrawal of health care that’s prohibited in Alabama.|
|Denial of Medical Care Without Durable Power of Attorney||Alabama law prohibits doctors, hospitals, insurance providers, etc. from requiring a person create a durable power of attorney for health care decisions as a condition of receiving health care insurance or services.|
|Immunity for Attending Physician||Health care providers who rely in good faith on agent's directions are immune from civil and criminal liability.|
If you need help drafting a durable power of attorney or other end-of-life planning documents, you should consult with an experienced Alabama estate planning attorney.
Note: Because state laws are changing constantly, it’s best to conduct your own legal research to verify these state law(s).
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