Re: section AA9

[Corey Ali]

Depending on your state, a regular power of attorney, ASSUMING it includes the ability to make health care decisions, is immediately effective, or is effective at the time specified and for the period specified in the document under the conditions specified in the document.  There is a difference, in that the Durable power usually requires the declaration of the principal being incompetent.  I have included a reference from North Carolina which explains in some detail, but you might want to do a search on Google in your state for "Durable Power of Attorney" and Power of Attorney.    Here's the quote:   ( http://www.ces.ncsu.edu/depts/fcs/estates/dpoa.html#dpoa ) A power of attorney is a document in which you give someone the legal authority to act for you. That person is called your attorney-in-fact or your agent. You are called the principal. You may name your spouse, an adult child, a relative, or trusted friend to be your agent. You should choose someone you trust completely. The actions of your agent authorized by your power of attorney are considered legally to be your actions. What makes a power of attorney durable? Springing powers of attorney Records, inventories, and accounts Registration Recommend a guardian Terminating a durable power of attorney Paying your agent What makes a power of attorney durable? A durable power of attorney is effective even though you are incapacitated. If you are planning for possible future incompetency, your power of attorney must be durable. To be durable, a power of attorney must state that it either remains or becomes effective after you become incapacitated, or it must refer to Article 2 of Chapter 32A of the North Carolina General Statutes. A nondurable power of attorney ends if you become incompetent or incapacitated. Someone may act on your behalf under a nondurable power of attorney only if you are competent, and it is used for reasons other than planning for incapacity. Springing powers of attorney A durable power of attorney may be effective immediately or only if you become incapacitated. A durable power of attorney that is effective if and when you become incapacitated is called a "springing" power of attorney. A springing power of attorney needs a method for determining if you are incapacitated so that third parties know they can rely upon your agent's authority. For this reason, many lawyers do not favor springing powers of attorney because of the difficulty in establishing when the principal is incompetent. A durable power of attorney that is effective upon signing eliminates this problem. For example, a springing power of attorney that becomes effective when a doctor determines the principal is incompetent may have limited use if doctors are reluctant to make this determination, particularly if the principal's condition does not meet the legal definition of "incompetent." Nevertheless, a principal may need help with his or her affairs because of diminished capacity that does not meet the legal definition of "incompetent." A springing power of attorney may pose difficulties in this situation unless it is carefully drafted. If the power of attorney does not provide a procedure for determining if the principal is incompetent, a springing power of attorney is effective when the agent swears in an affidavit that the principal is incompetent. Records, inventories and accounts If you become incapacitated or mentally incompetent, your agent must keep full and accurate records of anything he or she does on your behalf. Your agent must file inventories and accounts with the clerk of the superior court unless you waive this requirement. Note: Many durable powers of attorney waive this requirement because of the burden it places upon the agent.   Corey ----- Original Message ----- From: [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Thursday, April 22, 2004 10:37 PM Subject: section AA9 If a resident has a family member who is Power of Attorney but not Durable power of Attorney, how do you code section AA9? All input would be appreciated. Thanks