Tailoring Powers of Attorney: Beyond the Minimum Statutory Requirements

One of our great readers, attorney Paul Meints from Bloomington, Illinois, has shared ideas about how to make Powers of Attorney (POAs) more responsive to practical concerns, including  the possibility that when tough times eventually occur, the principal may fail to realize or recognize his or her own waning abilities, including the ability to drive safely.  Here is language Paul has tailored to address these potential concerns:

Inability to Function as Principal; Inability to Operate a Motor Vehicle in a Safe and Proper Manner:

My successor Agent or My Attorney may execute and deliver an Affidavit that I am unwilling or unable to serve or to continue to serve, and such affidavit shall be conclusive evidence insofar as third parties are concerned of the facts set forth therein, and in such event any person acting in reliance upon such affidavit shall incur no liability to my estate because of such reliance.  The decision as to determining my inability (1) to properly, prudently, and fully function as Principal and/or (2) to operate a motor vehicle shall be made by a Committee consisting of three of the persons [or such person’s designee] named on page one together with one other person selected by my attorney or the family committee.  I authorize all health care providers who may have provided, or be providing me with any type of health care (physical and mental), to disclose all direct or Protected Health Information (HIPAA/PHI) to each member of the family committee.  If, in the Committee’s sole and ab­solute judgment, I am so incapacitated by reason of illness, age, or other cause that I am incapable of expending funds for my own use and benefit or am not giving prompt attention to my financial affairs,  then my successor agent is authorized to act on my behalf.  If, in the Committee’s sole and ab­solute judgment, I am so incapacitated by reason of illness, age, or other cause that I am incapable of operating a motor vehicle in a safe, proper, and prudent manner, then my successor agent, My Attorney, or both are authorized to release and terminate my driving privileges.

I like the fact that this language realizes that not all agents will feel comfortable making decisions on sensitive matters by acting alone, and that the POA actually provides guidance for how to make an ulitimate decision about the principal’s inability to handle finances or drive. In essence, this POA would appear to permit the agent to override the principal’s resistence. Thanks for sharing this language, Paul.  Reactions from other readers?  Would your state recognize the vailidity of such language?