LEGAL VIEWPOINT: Durable Power of Attorney by Dr AbdelGadir Warsama Ghalib, Legal Counsel, Bahrain

Dr AbdelGadir Warsama Ghalib, Legal Counsel, Bahrain

As future plan, people may take some actions to enable others to perform certain duties on their behalf at certain times. One legal technique is to plan for the execution of a document that gives another person the legal authority to act on his behalf in case of mental or physical incapacity. This document is known as “Durable Power of Attorney”.

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A power of attorney is an express statement of legal authority to do an act on behalf of another person. This could happen for many reasons as needed by the person who gives authority “principal”. Ordinary powers of attorney terminate on the incapacity of the person giving such power. By contract, the durable power of attorney is not affected by incapacity.

A durable power of attorney permits a person to give someone else extremely board powers to make decisions and enter transactions such as those involving real and personal property, bank accounts and health care and to specify that those powers will not terminate in incapacity instances. The durable power of attorney is an extremely important estate planning device. For example, a durable power of attorney executed by an elderly parent to an adult child at a time in which the parent is competent would permit the child to take care of matters such as investments, property, bank accounts and hospital admission if the parent should become incompetent. Without the durable power of attorney, the child would be forced to apply to a court for a guardianship, which is more expensive and often less efficient manner in which to handle personal business affairs.

In some countries, they have laws to specifically provide for durable power of attorney for health care. Herein, the principal gives the agent the authority to make certain health care decisions for him if the principal should become incompetent, this could include decisions such as consenting or withholding consent to surgery, admitting to hospitals and possibly withdrawing or with holding life support. In such cases, the durable power of attorney becomes relevant only if the principal becomes incompetent. If the principal is competent, he retains the ability to make his own health care decisions. The power is revocable at the will of the principal. Moreover, it is required that the document should be written and executed with certain formalities.

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