It is difficult to anticipate health events that will make us unable to make decisions, but it is easy to prepare in advance and make a legal document in which we can establish how and who will be authorized to attend to our affairs if we cannot do so personally.
That legal tool is the Lasting Powerwhich can be done by any adult at any age, since it is not exclusive to older adults. In fact, the advice of legal experts is that everyone make a durable power of attorney because incapacity can occur at any time, due to an accident or health problems, such as early dementia, among other reasons.
Although this legal document has existed for a long time so that people can authorize others to make arrangements on their behalf, On January 18, 2012, Law 25 was signedwhich allows the Durable Power of Attorney not to be nullified if the person granting it becomes incapable of making decisions.
“The Durable Power of Attorney remains beyond the incapacity of the person who grants it,” explains the lawyer. Irma T. Rosado del Rioof the Comprehensive Victim Support Center (CIAV), from the School of Law of the University of Puerto Rico (UPR).
The Durable Power of Attorney is made through a public deed, which must be signed before a notary lawyer, and one of the fundamental requirements is that the person who decides to do so must be located in time and space; have general intellectual functioning that allows you to have the necessary skills to make decisions at the time you are going to grant it.
In legal language, the person who grants power to another through this legal resource is known as the “principal or agent” and the person who is authorized to make decisions on his or her behalf is identified as “agent or agent.”
Sometimes, whoever decides to make this document visits the notary with a family member or acquaintance. “(But), I like to speak only with the person who is going to make the power of attorney, even if they are accompanied by a family member, to be very clear about what the person wants.”; “That the person feels free to say what he wants to say,” notes Rosado del Rio.
“The person must be lucid to the satisfaction of the notary. Maybe you went to the doctor and the doctor or neurologist said that you can sign any document because you are located in time and space. But, if the notary says that he understands that that person is not qualified, he has the right to say: ‘I do not execute that deed.’ The notary is not obliged to execute that deed because a doctor said that that person is qualified”, declares the lawyer.
It advises that, to choose who will be authorized to make decisions on their behalf – which may include health determinations and management of property and money – the person should select someone they completely trust. They can be family, but they can also be friends. Additionally, more than one person may be selected to be attorneys-in-fact at a time or to serve as substitutes in the event that the primary attorney-in-fact is unable to continue with the appointment.
In general, it is understood that the agent will be paid for carrying out his duties with the money of the person who appoints him. If the person will not receive pay, it is necessary to establish this in the document.
Benefits of Lasting Power
This legal remedy has many benefits, including that the person has the opportunity to choose the person in charge of making correct decisions on their behalf in the event that they lose the ability to manage their assets or person.
Making that decision in time prevents family members from having to go through the process of assuming the expense of going to court to request a guardianship or incapacity ruling.
The Durable Power of Attorney can be made so that the agent can make general or specific decisions about the assets and affairs of the principal. It can also be done to delegate decision-making authority in specific matters such as, for example, the purchase and sale of a house, farm or real estate. In that case, the public deed must specify that act and describe the property in question, according to Rosado del Rio.
Another advantage of Lasting Power is that it is not set in stone. It can be changed or revoked. To do so, it is necessary to go to the notary again to have it done in writing.
In addition to being invalidated by the decision of the person who made it (agent), that deed may be invalidated by the resignation or incapacity of the representative or agent, or by the death of the person who decided to make the document or agent.
It is important to highlight that the person who receives the power or authorization to make decisions on behalf of another cannot exceed the limits established by the Durable Power of Attorney and that any act carried out that is not authorized by the document will be void or voidable. Likewise, “although the power is general, the agent cannot sell or encumber the real estate that constitutes the main house or the real estate equipment of the principal, except with prior judicial authorization,” highlights Rosado del Rio.