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Definition of Durable Power of Attorney in Indiana
A durable power of attorney (DPOA) is a legal document that allows an individual (the principal) to appoint another person (the agent) to make decisions on their behalf in the event that they become incapacitated.
The Indiana Code defines a DPOA as “a written instrument that gives one person (the principal) the power to act for another person (the agent) in the event the principal becomes incapacitated.” The DPOA remains valid even if the principal becomes mentally or physically incapacitated, unlike a regular power of attorney, which expires upon the principal’s incapacity.
Requirements for Creating a Durable Power of Attorney in Indiana
To create a valid DPOA in Indiana, the following requirements must be met:
- The principal must be 18 years of age or older and of sound mind.
- The agent must be 18 years of age or older and not under a legal disability.
- The DPOA must be in writing and signed by the principal.
- The DPOA must be witnessed by two disinterested witnesses.
- The DPOA must be notarized.
Uses of a Durable Power of Attorney
A DPOA can be used to grant the agent broad powers to make decisions on behalf of the principal, including:
- Managing financial affairs
- Making healthcare decisions
- Selling or purchasing property
- Entering into contracts
- Filing lawsuits
Creation and Execution of Durable Power of Attorney in Indiana
Creating a durable power of attorney in Indiana involves several essential steps to ensure its validity and effectiveness. Proper execution, including notarization and witness requirements, is crucial for the document to be legally binding.
Steps Involved in Creating a Durable Power of Attorney
– Determine the Principal and Agent: The principal is the person granting the power of attorney, while the agent is the person authorized to act on their behalf.
– Choose a Form or Attorney: Durable power of attorney forms are available online or through legal professionals. If desired, an attorney can assist in drafting a customized document.
– Complete the Form: Fill out the form thoroughly, providing clear instructions and limitations on the agent’s authority.
– Notarization: The principal must sign the document in the presence of a notary public, who will verify the principal’s identity and ensure they understand the document.
– Witnesses: In addition to the notary, two witnesses must also be present and sign the document. They must be over 18 years old and not related to either the principal or agent.
Importance of Proper Execution
Proper execution of a durable power of attorney is essential for several reasons:
– Legal Validity: Without proper execution, the document may not be legally binding and could be contested in court.
– Protection for the Principal: Notarization and witnesses provide evidence that the principal was of sound mind and understood the document’s contents.
– Peace of Mind: A properly executed durable power of attorney ensures that the agent has the authority to act on the principal’s behalf in case of incapacity.
Termination and Revocation of Durable Power of Attorney in Indiana
A durable power of attorney in Indiana can be terminated or revoked under specific circumstances. Understanding these circumstances and the legal procedures involved is crucial to ensure the effective management of your affairs.
Circumstances for Termination or Revocation
A durable power of attorney can be terminated or revoked when:
– The principal becomes incapacitated. If the person who created the power of attorney (the principal) becomes mentally or physically incapacitated to the extent that they can no longer make decisions for themselves, the power of attorney automatically terminates.
– The principal dies. The death of the principal automatically revokes the durable power of attorney.
– The agent breaches their fiduciary duty. If the person appointed to act on the principal’s behalf (the agent) breaches their fiduciary duty, the principal can revoke the power of attorney.
– The principal changes their mind. The principal has the right to revoke the power of attorney at any time, even if they are not incapacitated.
Legal Procedures for Termination or Revocation
The legal procedures for terminating or revoking a durable power of attorney vary depending on the circumstances.
– Incapacity or death of the principal: The termination of the power of attorney due to incapacity or death does not require any formal action.
– Breach of fiduciary duty: To revoke the power of attorney due to a breach of fiduciary duty, the principal must provide written notice to the agent and any third parties who have been notified of the power of attorney.
– Change of mind: The principal can revoke the power of attorney by providing written notice to the agent and any third parties who have been notified of the power of attorney.
Consequences of Termination or Revocation
The termination or revocation of a durable power of attorney has several consequences:
– The agent’s authority ends. The agent can no longer act on behalf of the principal once the power of attorney is terminated or revoked.
– The principal’s rights are restored. The principal regains the right to make decisions for themselves once the power of attorney is terminated or revoked.
– Third parties are notified. The principal should notify any third parties who have been notified of the power of attorney that it has been terminated or revoked.
Understanding the circumstances and legal procedures for terminating or revoking a durable power of attorney in Indiana is essential to ensure that your affairs are managed according to your wishes. By following these guidelines, you can maintain control over your decisions and protect your interests.
Legal Implications and Considerations
Durable power of attorney in Indiana carries significant legal implications. Understanding these implications is crucial to protect the rights of both the principal and the agent.
Capacity
The principal must have the mental capacity to understand the nature and consequences of the power of attorney when it is created. If the principal lacks capacity, the power of attorney may be invalid.
Undue Influence
The power of attorney must be created without undue influence. Undue influence occurs when someone takes advantage of the principal’s vulnerability to pressure them into signing the document.
Elder Abuse
Durable power of attorney can be used to protect the elderly from abuse. If the principal is being abused, the agent can use the power of attorney to take legal action to protect them.
Resources and Additional Information
If you need further assistance with durable power of attorney matters in Indiana, consider consulting with the following resources:
Legal Professionals
- Indiana State Bar Association: 317-639-5465, https://www.inbar.org/
- Legal Services Corporation of Indiana: 1-800-822-4131, https://www.indianalegalhelp.org/
Financial Advisors
- Financial Planning Association of Indiana: 317-843-3434, https://www.fpain.org/
- National Association of Personal Financial Advisors (Indiana Chapter): https://www.napfa.org/find-an-advisor/search-results?country=US&state=IN
Other Resources
- Indiana Protection and Advocacy Services, Inc.: 1-800-622-4866, https://www.indianapro.org/
- Indiana Department of Health: 317-233-7125, https://www.in.gov/isdh/
- National Council on Aging: 1-800-677-1116, https://www.ncoa.org/
