HAVE YOU THOUGHT ABOUT WHETHER THE POWER TO DONATE SHOULD BE IN A DURABLE POWER OF ATTORNEY (MANDATE
Next time you are asked to prepare a durable power of attorney, read it. So often, we as notaries, use forms on a rote basis. It's easy to become complacent with a form which we got from a trusted source, or one that has worked for us in the past, so we use it without constant review. First of all, what is it that makes a power of attorney "durable"? It is the ability of the power of attorney to be valid even after the mental incompetence of the principal. This allows a trusted agent to continue to act on behalf of the principal without the necessity of interdiction and the appointment of a curator. Interdictions require court action and can be very expensive. Because of the continuation after mental incompetence, it is imperative that the agent have a broad range of powers to assist the principal. There will likely be no opportunity later for a new or amended mandate.
By its very nature, since the agent's job is to assist the principal in keeping his affairs in order and protecting his fisc, it stands to reason that a principal doesn't want an agent to be giving away his property. For that reason, the power to donate is rarely found in the most widely used forms of a durable power of attorney. That is not to say, however, that it cannot be included if that is the desire of the principal. That is where your skill as a notary comes in. You should have a conversation with the principal and inquire if there may be circumstances where the power to donate is necessary, such as for estate planning to reduce tax liability.
Go over the things included in a durable mandate with the person you are assisting, and don't forget to ask if there is anything else to include. Sometimes the principal has very specific objectives in mind, but if you don't ask, they may stand silent, assumingyou know what they want, and that the form they are signing is "standard".