As discussed within the last two blogs, North Dakota courts will allow mentally competent adults to appoint third party power of attorney agents to sign financial documents for them. If you appoint someone else as your financial attorney-in-fact, you can give him a durable power of attorney. If you do not incorporate language stating that your attorney-in-fact or third party agent has a “durable” power, she may be unable to act as your financial power of attorney if you become mentally unable to make decisions. If you give her a durable power of attorney, she may continue making financial decisions on your behalf upon your mental incapacity.
One of our attorneys can help you incorporate the durable power of attorney provisions, and make sure that your financial agent has the power to continue making financial decisions if you become legally incompetent . All power of attorneys end upon your death, and even a durable power of attorney document will not allow your agent to continue making financial decisions after you die.
North Dakota law allows you to create a financial power of attorney that becomes effective upon signing or on a future date. Post-dated financial power of attorney forms that become effective on a later date are called “springing” power of attorneys. A springing power of attorney may become effective only when your doctor, attending physician or other medical professional renders her professional opinion that you are mentally unable to make legal decisions. In this case, your attorney would draft a durable, springing financial power of attorney, which takes effect upon a legal decision of mental incapacity.