What is a Durable Power of Attorney?
The Indiana Durable Power of Attorney Form PDF refers to a legal document prepared by a Grantor, in accordance with Indiana law, that grants the Agent the authority to make certain decisions and carry out specific actions on behalf of the Grantor. It allows the Agent to act in the place of the Grantor when specifically described. These Powers can be broad or narrow, allowing the Agent to conduct all affairs or just certain tasks. The Grantor may grant the Agent the authority to make healthcare decisions, manage property, make financial decisions , and handle litigation. Consider for example Durable Powers of Attorney for healthcare. Under Indiana Code 30-5-1-3, the Indiana legislature created a form that allows a Grantor to appoint an Agent to make decisions about medical treatment when such decisions are about life sustaining treatment. This statute allows the Grantor some control over the course of his or her healthcare, such as the right to refuse treatment. The right to make these decisions is subject to prescribed limitations. Properly executed, the Power of Attorney shall be valid until its expiration, revocation, or the death of the Principal.
Essential Attributes of Indiana’s Durable Power of Attorney
Each state has its own explicit set of requirements that are distinct from other jurisdictions. An Indiana durable power of attorney must be signed in the presence of a notary public, who must then "subscribe" (or sign) to the document, as well as by two witnesses aged 18 or older, also in the presence of a notary. (In contrast, other states allow for both witnesses and a notary public to sign the document.) A common question for clients is if a married person’s spouse will automatically have authority to act in their absence. Under Indiana Law, it is not automatically the case that a spouse has authority to act on behalf of their partner just by virtue of their marriage. Without the execution of a power of attorney, a spouse would need to bring an action to have the marriage dissolved in order to gain any authority regarding marital assets. In Indiana, an attorney-in-fact is allowed to sign documents of any kind, including those associated with real estate transactions, business sales, transfers, gifts, insurance and taxes. Essentially, any type of decision-making authority legally granted to an individual may be delegated to an attorney-in-fact through the power of attorney form.
How to Get The Indiana Durable Power of Attorney Form PDF
To obtain the Indiana Durable Power of Attorney Form PDF, interested individuals have a few different options. The easiest way is to use online resources offered by a number of companies that provide access to laws and forms. From these websites, a user can typically download a form directly onto a computer or mobile device and print it out. Multiple versions of the Indiana Durable Power of Attorney Form PDF are available through some of these sites. Since the correct one depends on the situation, users should take care to read them all before completing the necessary fields.
Some sites allow the user to complete the fields directly from the site, saving the user from needing to print out the form prior to having it signed. However, the user should check the laws for his or her state to determine if electronic signatures are valid for the Indiana Durable Power of Attorney Form PDF, or if the individual will need to physically sign the document and print it out prior to signing it.
While using online resources may be the most convenient method for acquiring the form, individuals should be cautious when utilizing this option. Before downloading or inputting personal information, users should ensure that the website is trustworthy. Quality websites, such as government or official legal sites have ".gov" or ".edu" at the end of the web address, and they do not require any payment in order to use their service.
Upon acquiring the Indiana Durable Power of Attorney Form PDF and completing the necessary fields, the individual may need to have the form notarized to create a legally binding contract. Since this form is a binding contract, the signatories must have the proper mental capacity to understand what they are signing. It is also important that they willingly enter into the agreement of their own volition.
Instructions for Completing the Indiana Durable Power of Attorney Form
This power of attorney form requires the names and addresses of the principal and the attorney-in-fact as well as the principal’s signature. There is no notion of witness signatures but Indiana requires that the signatures be notarized. The notary must be complete, meaning it must include the notary’s expiration date, commission number, and other details as may be indicated on the pages of the document.
"DO NOT SIGN OR DATE HERE UNLESS YOU ARE A NOTARY PUBLIC" as its name implies is for the use of a notary public. It does not permit the attorney-in-fact to sign in the presence of the attorney. The purpose of this section is to authorize the attorney-in-fact to conduct the transaction before the attorney in fact has signed the form: a recorded signature will identify the transaction by the attorney-in-fact as being done on the date specified. Plainly, there must be a signature of the principal when the instrument is dated or the statement will not be accurate. The failure to date or sign the instrument or the failure of the principal to specify the date of signing will constitute a defect in the instrument.
Indiana permits a principal to give an attorney-in-fact all of the powers of an agent or power of attorney under Ind. Code Sec. 30-5-4, et seq. This power of attorney can be used to legally delegate your authority to another individual over a broad expanse of subjects. In the context of medical decisions, the DPA can be used to give consent to medical treatment, such as surgery. The contents of the Durable Power of Attorney for Health Care can also be incorporated into the Durable Power of Attorney form, by using the term "DPOA" whenever health care is contemplated.
Power of attorney is a term used to give another person the authority to act on your behalf with respect to financial or medical decisions.
The name and address of the principal are all that is required at the top of the first page of the Durable Power of Attorney. The name and address of the attorney-in-fact and co-attorney-in-fact, if any, are all that is required on the second page. The attorney must also initial at the bottom of both pages of the DPA.
Agent’s Duties and Responsibilities
In the case of a Durable Power of Attorney, an Agent is an individual who is granted authority to act on behalf of the Principal for specified matters and under specific limitations. Under Indiana law, there is no limit (i.e., no statutory cap on the amount of money or value of property) to the power of the Agent to act on behalf of the Principal. Notwithstanding, a narrow exception could occur in certain cases where specific distributions to a certain class of beneficiaries may be automatically disallowed if an Agent were to act beyond the bounds of a Principal’s expressed desires as stated in a trust or in a codicil to the Principal’s will.
Although Indiana statute does not, by default, limit the scope or extent of an Agent’s authority to act for the Principal, the Principal can insert specific language within the Decree of Grant of Authority so as to limit the Agent and/or to grant authority to the Agent over a specific area of the Principal’s affairs.
A Principal may want to consider limiting the authority of an Agent by listing specific powers and/or limiting the powers based on a period of time or a certain event. Indiana law requires the Principal to expressly state a limitation to the Agent in the text of the Decree of Grant of Authority.
When Does a Durable Power of Attorney Take Effect?
In most situations, the person who is making the Indiana Durable Power of Attorney (the "Principal") is "the one" who has the power to immediately dictate when their Durable Power of Attorney goes into effect. In other words, an Indiana Durable Power of Attorney form is a document that an Indiana resident can sign and leave sitting on their kitchen counter or file cabinet for a year or two as they are drafting it. There is no need for an Indiana resident to "have it signed yesterday" or "sealed in blood" unless that is done for convenience purposes.
An Indiana resident can sign a durable power of attorney today and in the next moment, have it go into effect by choosing to become incapacitated. They can choose to do this or even sign a second document immediately after signing the first that states something along the lines of: "This power of attorney goes into effect upon my ‘determination of incapacity’ as determined by one or more of my physicians." This is typically not the way that it is drafted , but it could be if they want it to be that way.
It is important to remember that signing a power of attorney is a gift. In some cases, the power of attorney is set up to be effective immediately or at a specific date in the future (like when someone turns 18 years old.) The common feature of powers of attorney is that the powers that are given to the agent (sometimes called the "attorney in fact" or the "agent") are quite broad. The agent has the power to spend funds out of the principal’s bank account without any reporting requirements (unless they are guardians). So, it is a big gift with money and therefore it may be a good idea to limit the power of attorney so that it only becomes effective if something happens, such as the person becoming incapacitated.
Revocation or Termination of a Durable Power of Attorney
A valid power of attorney may be revoked by the principal at any time. Revocation can take many forms, from an informal oral statement to a more official written revocation. However, if the document creating the power of attorney is referenced in the revocation, this has the effect of revoking the agent’s authority. The revocation must be in writing and signed by the principal. If the principal is incompetent (for example, in an advanced stage of Alzheimer’s or Parkinson’s), the revocation might not be effective.
If a principal needs to revoke the authority of an agent but is unable to do so due to incapacity, the revocation must be done judicially or as described in a durable power of attorney. In general, it is recommended that a parent revoke the authority of an agent to ensure that she will not be humiliated by having to take care of business for her parent.
A power of attorney can be amended in a similar fashion, such as by simply stating that the principal amends Paragraph #4 of the power of attorney.
Frequently Asked Questions About Durable Power of Attorney
A common misconception is that your agent under a durable power of attorney is under a duty to always consult with you before exercising a power. Nothing could be further from the truth. An agent is not required to consult with you unless the durable power of attorney specifically states that the agent must consult with you.
Another myth is that your agent cannot exercise certain powers that are traditionally associated with a trustee, such as transferring an asset to a revocable trust. Under a properly drafted durable power of attorney, your agent will have the authority to exercise these discretionary powers and should be able to do so without any limitations whatsoever. Many estate planning attorneys fail to include these provisions in durable powers of attorney, primarily because their law practice centers around the drafting of wills and trusts, not a durable power of attorney, and many attorneys do not possess the expertise for properly and efficiently drafting a durable power of attorney.
Another misconception is that your agent can only act in your best interests. Although your agent has a fiduciary duty to act in your best interests, the greatest care must be used in selecting an agent.
One common misconception is that most people think that when they sign a durable power of attorney, they must be aware of what they are signing. In fact, you can sign a durable power of attorney while you are under the influence of drugs, alcohol, or have some other incapacity (such as your doctor telling you that you have six months to live due to terminal cancer). This is not to say that your agent could not take advantage of you, but it is a reality that these things do happen. Because your durable power of attorney does not become effective until you are incapacitated, circumstances such as the above should be taken into account when selecting someone as your agent.
Another misconception is that you need a notary to sign the Indiana durable power of attorney form PDF. Most banks require that you sign the durable power of attorney in front of a bank officer. Although the banks tell you that this is for the "good" of everyone concerned, this is not always the case. The reason banks want you to sign in front of one of their employees is that it makes it more difficult to challenge the document because the agent then is required to go to court to obtain a declaration that the signature is valid.
Contact an Attorney for Safe and Secure Legal Planning
Navigating the intricate details of legal documents such as a Durable Power of Attorney (DPOA) form can be a complex task. Online resources, including Indiana Durable Power of Attorney Form pdf downloads, aim to simplify the process for individuals looking to designate durable attorneys-in-fact. While there are several resources available, the process still requires careful attention to these provisions. Mistakes made within a DPOA document can lead to further expenses, time lost, and added stress. States provide laws and statutes that craft the framework for creating a valid Durable Power of Attorney form and using it to plan for one’s legal needs.
Many consult estate planning software to create a DPOA, or simply search for sample forms online. Some people prefer to write or type in a form and have a notary sign off on it. State laws offer some guidance on creating a durable power of attorney, and many states’ default statutory DPOA forms contain a statutory construction provision that states this is the form with provisions recognized by the state. The form that states that it is a statutory form generally complies with Indiana law and is usually acceptable by third parties .
However, there are other factors to consider in planning a durable power of attorney. Are the "powers" included in your DPOA form? Is the underlying purpose of the DPOA clear? Consulting with an attorney can help ensure this process is done correctly for the specific wishes of the principal. Understanding Indiana’s requirements for a DPOA will help the attorney draft a valid form with specific recommendations about what powers may be desired. Your complex needs can be analyzed more closely by a professional to determine specific powers for your DPOA. For example, powers of attorney for property could include gifting, real estate transactions, and banking transactions. Powers of attorney for health care should be specifically written to include physicians and long-term care facilities.
An estate planning attorney can be beneficial when creating a DPOA that complies with Indiana law and is crafted to ensure that the principal’s intentions are met. Meeting with a professional can help ensure your wishes are met in the way you anticipated for you and your family.