# Case Studies

> Case studies involving Powers of Attorney

Source: https://wiki.powersofattorney.com/casestudies · Updated 2 February 2023

- [Case Study - **Different types of terms**](https://wiki.powersofattorney.com/casestudies#case-study-different-types-of-terms)
- [Case Study - **Mental illness**](https://wiki.powersofattorney.com/casestudies#case-study-mental-illness)
- [Case Study - **Examples of durable** ***Powers of Attorney***](https://wiki.powersofattorney.com/casestudies#case-study-further-examples-of-durable-powers-of-attorney)
- [Case Study - **Between two dates**](https://wiki.powersofattorney.com/casestudies#case-study-between-two-dates)
- [Case Study - **Conditional termination**](https://wiki.powersofattorney.com/casestudies#case-study-conditional-termination)
- [Case Study - **Springing** ***Powers of Attorney***](https://wiki.powersofattorney.com/casestudies#case-study-springing-powers-of-attorney)
- [Case Study - ***Military Powers of Attorney***](https://wiki.powersofattorney.com/casestudies#case-study-military-powers-of-attorney-raise-interesting-questions)
- [Case Study - **The Concept of ‘Inception’**](https://wiki.powersofattorney.com/casestudies#case-study-the-concept-of-inception-in-the-framework)
- [Case Study - **Fulfilment of Purpose**](https://wiki.powersofattorney.com/casestudies#case-study-fulfilment-of-purpose)
- [Case Study - **Temporal Nexus & Purpose**](https://wiki.powersofattorney.com/casestudies#case-study-temporal-nexus-affects-prospects-to-fulfil-purpose)

## Case Study - Different Types of Terms

##### Introduction

This [Case Study](https://wiki.powersofattorney.com/casestudies#case-study-different-types-of-terms) illustrates the nature of different ‘terms’, in particular:

- the **term of the** ***Power of Attorney*** *(ie. its lifespan*)
- **term of appointment** being the period for which an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) is appointed (*i.e within the lifespan of a Power of Attorney*)
- **terms of authority**, explaining how things work during the course of the [agent's](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) appointment

##### Facts

Mary [creates](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) a *Power of Attorney,* appointing Steven and Mark as [agents](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal).

The "**term of Mary's** ***Power of Attorney***" is three (3) years, commencing and terminating on two specific dates.

The **term of Steven's appointment** is between two dates, being two dates that are six (6) months apart and both in the second year of the *Power of Attorney*.

Stephen is appointed upon certain **terms of authority** recorded in the *Power of Attorney* dealing with matters like:-

- what [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) Stephen may perform
- when Stephen may perform those tasks *(perhaps on certain dates, subject to a contingency)*
- any prevailing circumstances that qualify Stephen's role
- [limitations](https://wiki.powersofattorney.com/limitwhatis#a-limitation-regulates-the-core-terms-of-a-power-of-attorney) restricting the scope of Stephen's authority
- obligations upon Stephen, such as perhaps producing annual [accounts](https://wiki.powersofattorney.com/agentoblig#case-study-duty-to-keep-accounts) in compliance with specific [directions](https://wiki.powersofattorney.com/directionwhatis#a-direction-regulates-the-core-terms-of-a-power-of-attorney)
- Stephen's authority to act [independently](https://wiki.powersofattorney.com/agenttaskalloc#the-terms-joint-several-and-joint-several-refer-to-ways-decisions-may-be-made) or [by agreement](https://wiki.powersofattorney.com/agenttaskalloc#the-terms-joint-several-and-joint-several-refer-to-ways-decisions-may-be-made) with other [agents](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal)
- Stephen's authority to act perhaps only if certain [conditions](https://wiki.powersofattorney.com/conditions#conditions) are satisfied

Mark is appointed upon different terms.

##### Conclusion

This [Case Study](https://wiki.powersofattorney.com/whatisapoa#case-study-different-types-of-terms) highlights the difference between:-

- the 'lifespan' of a *Power of Attorney* (*i.e **term of the Power of Attorney***)
- the period in respect of which an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) is appointed (*i.e. **term of appointment***)
- provisions governing how things work during an [agent's](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) term of appointment (*i.e. **terms of authority***)

## Case Study - Mental Illness

##### Introduction

This [Case Study](https://wiki.powersofattorney.com/new-pagetest999#case-study-mentally-illness) illustrates is how:-

- a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Power of Attorney* may be cast so as to only authorize [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) to be performed when the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) has [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs)
- a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Power of Attorney* may be cast so as to authorize [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) only to performed [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) when the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) lacks [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs)

Importantly, because each of these *Powers of Attorney* are [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity), they do not [terminate](https://wiki.powersofattorney.com/termmng#termination-refers-to-a-power-of-attorney-coming-to-an-end) immediately upon the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) losing [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs).

##### Facts

Geoff suffers periodic bouts of mental illness, during which he loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) to manage his affairs for extended periods.

Geoff's wants to grant two *Powers of Attorney*:-

- ***Power of Attorney*** **1**: to his sister Mary, an accountant, to perform [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) for Geoff on her own during any period that Geoff **has** [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) (*"Power of Attorney* 1")
- ***Power of Attorney 2***: to his sister Mary and brother Mike, authorizing them to act by agreement in managing his affairs during periods Geoff **lacks** [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) (*"Power of Attorney 2*")

##### Conclusion

Poignantly, circumstances involving mental illness are the precise kind of circumstances that [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Powers of Attorney* are intended to solve.

For each *Power of Attorney* to be a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Power of Attorney*:-

- it would need to be clear from the contents of each *Power of Attorney* read in conjunction with any relevant [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) that Geoff intended the operation of the *Power of Attorney* to not terminate on the first occasion he loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) after the *Powers of Attorney* are signed by him;
- the *Powers of Attorney* would need to comply with any relevant [mandatory requirements](https://wiki.powersofattorney.com/creation/requirements#mandatory-requirements-1) applicable to a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Power of Attorney*

In particular, *Power of Attorney* 1 granted to Mary alone would be [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity), even though it only authorizes Mary to perform [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) at any time in the future that Geoff has [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs).

It is of no consequence that:-

- *Power of Attorney* 1 only authorizes Mary to perform [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) at any time in the future that Geoff has [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs)
- does not authorize Mary to perform any [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) when Geoff lacks [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs)

The question of what [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) Mary is authorized to perform at any given time is only an incidental matter, incidental to satisfaction of the relevant consideration, whether Geoff's preference is for the *Power of Attorney* not [terminate](https://wiki.powersofattorney.com/termmng#termination-refers-to-a-power-of-attorney-coming-to-an-end) on the first occasion Geoff loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) after the *Powers of Attorney* are signed by him.

What [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) Mary or Mike might perform under either *Power of Attorney* has no bearing upon Geoff's preference that neither of the *Powers of Attorney* [terminate](https://wiki.powersofattorney.com/termmng#termination-refers-to-a-power-of-attorney-coming-to-an-end) at the first moment Geoff loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs).

## Case Study - Further Examples of Durable *Powers of Attorney*

##### Introduction

Below are some examples of a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Power of Attorney*

##### Example 1

Consider these further examples of a *Power of Attorney*:-

- a *Power of Attorney* that [terminates](https://wiki.powersofattorney.com/termmng#termination-refers-to-a-power-of-attorney-coming-to-an-end) the day after the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs), which would be a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Power of Attorney* because it does not succumb to the [common law](https://wiki.powersofattorney.com/terms#meaning-of-common-law) rule
- a *Power of Attorney* that [terminates](https://wiki.powersofattorney.com/termmng#termination-refers-to-a-power-of-attorney-coming-to-an-end) if the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) and some further condition precedent is satisfied (i.e. a certain [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) remaining [eligible](https://wiki.powersofattorney.com/terms#meaning-of-eligible) and appointed; a certain date has passed; a marriage is continuing)

Both of these are clearly examples of a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Power of Attorney*, because they do not unequivocally terminate upon the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) losing [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs)

##### Example 2

A [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Power of Attorney* might:-

- only authorize [agents](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) when the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) has [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs)
- authorize one [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform one [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) until such time as the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs), after which point in time two other [agents](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may commence to perform that [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks)
- authorize two [agents](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform certain [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) on an ongoing basis, but only perform those [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks), or perhaps other [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks), between two particular dates in the future if the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) lacks [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs)
- [terminate](https://wiki.powersofattorney.com/termmng#termination-refers-to-a-power-of-attorney-coming-to-an-end) if the moon is blue and the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) has [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs), or if the moon is red and the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) lacks [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) etc.

##### Example 3

Imagine a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Power of Attorney* including provision to the effect that the *Power of Attorney*:-

- will not [terminate](https://wiki.powersofattorney.com/termmng#termination-refers-to-a-power-of-attorney-coming-to-an-end) if the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) before a certain date
- will [terminate](https://wiki.powersofattorney.com/termmng#termination-refers-to-a-power-of-attorney-coming-to-an-end) if the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) lacks [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) on or after that date

The *Power of Attorney* will operate until the specified date and thereafter, will [terminate](https://wiki.powersofattorney.com/termmng#termination-refers-to-a-power-of-attorney-coming-to-an-end) if the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) lacks [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) on or after that date.

## Case Study - Between Two Dates

##### Introduction

This [Case Study](https://wiki.powersofattorney.com/casestudies#case-study-between-two-dates) illustrates:-

- how a *Power of Attorney* may be cast to operate between two dates
- how to approach [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) along the lines of ‘*a non-durable Power of Attorney is terminated by the incapacity of the principal’*

##### Facts

Imagine a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Power of Attorney* including provision to the following effect:-

*"Between [Date 1] and [Date 2]:-*

- *agents may perform the tasks they are authorized to perform in this Power of Attorney at any time during any period that I have capacity*
- *agents cannot perform the tasks they are authorized to perform in this Power of Attorney at any time during any period that I lack capacity..*

***any time** refers to any single time and more than one time..*

***any period** refers to any single period and more than one period..*

### Applying The Fundamental Principle

This is a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Power of Attorney*, because the intention of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) is that the *Power of Attorney* continues to operate, if the [principal's](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) lacks [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs).

In drawing this conclusion, we focus solely upon the [principal's](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) intention.

The [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) intends that the *Power of Attorney* not [terminate](https://wiki.powersofattorney.com/termmng#termination-refers-to-a-power-of-attorney-coming-to-an-end) immediately upon the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) losing [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs).

It is this intention, quite apart from any consideration of what the [agents](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) are able to do and when during the life of the *Power of Attorney,* that renders it [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity).

### Why Is This Case Study Helpful

This [Case Study](https://wiki.powersofattorney.com/casestudies#case-study-between-two-dates) is poignant, because:

- it illustrates how in **California**, [§4155](https://codes.findlaw.com/ca/probate-code/prob-sect-4155.html) (*which provides that “a non-durable Power of Attorney is terminated by the incapacity of the principal”)* is not to be read as suggesting a *Power of Attorney* that does not terminate on [incapacity](https://wiki.powersofattorney.com/capacitytexas#the-six-6-greater-states-have-defined-incapacity-in-legislation) is [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) (by some sort of ‘default logic’)
- it illustrates how in **New York**:-

  - [§5-1501A](https://www.nysenate.gov/legislation/laws/GOB/5-1501A) provides that *"a Power of Attorney durable unless it expressly provides that it is terminated by the principal losing capacity”* so as to reflect the fundamental principle
  - applying [§5-1501A](https://www.nysenate.gov/legislation/laws/GOB/5-1501A) to the example *Power of Attorney* in the illustration above:-

    - despite [agents](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) being unable to perform any [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) when the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) lacks [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs)
    - it is the continuing operation of the *Power of Attorney*, continuing to authorize [agents](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to potentially perform those [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) when the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) has [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs), that gives the *Power of Attorney* its [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) character

This [Case Study](https://wiki.powersofattorney.com/casestudies#case-study-between-two-dates) makes it easy to identify the flaw in reasoning like “..*this Power of Attorney is* [*non-durable*](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney) *in **California**, because it does not authorize the* [*agents*](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) *to perform* [*tasks*](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) *at any time that the* [*principal*](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) *lacks* [*capacity*](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs)*”*

This is plainly incorrect, applying the fundamental principle.

### A Side Issue

In considering this [Case Study](https://wiki.powersofattorney.com/casestudies#case-study-between-two-dates), it is helpful to recognize that the expression “*perform the authorized tasks at **any time** during **any period** that I..”* is preferred over a version using instead the expression “*act if..*”, resulting in expressions like "*my agents cannot act if I lack capacity..".*

This is because the word “act” seems to have unwanted intimations as to appointment.

Any suggestion that appointment is somehow relevant can and should be avoided, by adopting the preferred formula of words (including the expression ‘*any time during any period*’ above).

## Case Study - Conditional Termination

##### Introduction

This [Case Study](https://wiki.powersofattorney.com/casestudies#case-study-conditional-termination) illustrates the notion of conditional termination.

##### Facts

Imagine a Power of Attorney that provides that:

*“In the event that:-*

*(a) the principal lacks capacity and Bill Smith is appointed as an agent, this Power of Attorney will not terminate upon the principal losing* [*capacity*](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs)

*(b) Bill Smith is not appointed as an agent and the principal lacks capacity, this Power of Attorney terminates..".*

##### A Further Example

Consider these examples:-

- a *Power of Attorney* that is to the effect “..*this Power of Attorney terminates upon me losing capacity in San Francisco but if I lose capacity outside San Francisco, this Power of Attorney will not terminate*..”
- a *Power of Attorney* that is to the effect “..*this Power of Attorney terminates upon me losing capacity if Mary Smith is alive and functioning normally at the time I lose capacity, but if I lose capacity and Mary Smith is not alive and functioning normally at the time I lose capacity this Power of Attorney will terminate upon me losing capacity*..”.

In the first example, if the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) outside San Francisco it would not terminate and yet, if the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) in San Francisco, the *Power of Attorney* would terminate.

In the second example, if the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) and Mary Smith is alive and functionally normally, the *Power of Attorney* would not terminate and yet, if Mary Smith was dead or [incapacitated](https://wiki.powersofattorney.com/capacitytexas#incapacity-refers-to-inability-to-manage-ones-own-affairs), the *Power of Attorney* would terminate.

These examples illustrate how unless a [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) unconditionally, without qualification, prefers that their *Power of Attorney* [terminates](https://wiki.powersofattorney.com/termmng#termination-refers-to-a-power-of-attorney-coming-to-an-end) if they lose [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs), they would need to [create](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Power of Attorney.*

## Case Study - Springing *Powers of Attorney*

##### Introduction

This [Case Study](https://wiki.powersofattorney.com/casestudies#case-study-springing-powers-of-attorney) examines the concept of [springing](https://wiki.powersofattorney.com/typescommonlyusedpersons#springing-powers-of-attorney) *Powers of Attorney*.

##### Facts

###### Example 1

Maria creates a *Power of Attorney* that:-

- includes a [direction](https://wiki.powersofattorney.com/directionwhatis#a-direction-regulates-the-core-terms-of-a-power-of-attorney) requiring her [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal), Michael to take reasonable steps to meet every six (6) months with a co-agent, Jennifer, to review a plan in place to ensure a development application in respect of a block of land is lodged by a certain date two years from today, being an development application that Maria wants lodged between January 1, 2024 and December 31, 2025, when it is in the best interests of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney)
- entitles Michael and Jennifer to [remuneration and expenses](https://wiki.powersofattorney.com/agententitle#agent-may-be-entitled-to-remuneration-or-expenses) associated with their meetings
- authorizes Michael and Jennifer to lodge the development application between January 1, 2024 and December 31, 2025

###### Example 2

Maria creates a *Power of Attorney* that states: “this *Power of Attorney* does not commence until 1 January 2029” and no other words that might qualify these words.

##### Example 3

Maria has a spouse and children.

Maria creates two [general](https://wiki.powersofattorney.com/typescommonlyusedpersons#general-powers-of-attorney) *Powers of Attorney*:-

- one *Power of Attorney* commences today and terminates on the 70th birthday of her spouse, Michael, unless:-

  - Michael dies prior to his 70th birthday, in which event the *Power of Attorney* terminates upon his death; and
  - Michael loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) prior to his 70th birthday, in which event the *Power of Attorney* continues according to its terms, which provide Michael may only only perform [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) at any time during any period that Michael has [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) prior to his 70th birthday; and

- a second *Power of Attorney* which commence today and under which:-

  - Maria and Michael's children are authorized to perform by agreement any task capable of being performed by an agent on and from Michael's 70th birthday unless Michael dies or loses capacity before Michael's 70th birthday, in which event Maria's children may commence to exercise authority under the second *Power of Attorney* immediately upon Michael's death or loss of capacity (*during any period Michael lacks capacity*)
  - Michael is appointed and authorized as a co-agent to perform [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) independently at any time during any period that Michael has [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs)

##### Example 4

Maria has a spouse and children.

Maria creates two [general](https://wiki.powersofattorney.com/typescommonlyusedpersons#general-powers-of-attorney) *Powers of Attorney*:-

- one *Power of Attorney* commences today and terminates on the 70th birthday of her spouse, Michael, unless:-

  - Michael dies prior to his 70th birthday, in which event the *Power of Attorney* terminates upon his death; and
  - Michael loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) prior to his 70th birthday, in which event the *Power of Attorney* continues according to its terms, which provide Michael may only only perform [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) at any time during any period that Michael has [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) prior to his 70th birthday; and

- a second *Power of Attorney* which states it will “become effective” on Michael's 70th birthday, unless Michael dies or loses capacity before Michael's 70th birthday in which it will “become effective” upon Michael losing capacity, under which:-

  - Maria and Michael's children are authorized to perform by agreement any task capable of being performed by an agent on and from Michael's 70th birthday unless Michael dies or loses capacity before Michael's 70th birthday, in which event Maria's children may commence to exercise authority under the second *Power of Attorney* immediately upon Michael's death or loss of capacity (*during any period Michael lacks capacity*)
  - Michael is appointed and authorized as a co-agent to perform [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) independently at any time during any period that Michael has [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs)

##### Conclusion

###### Comparing Example 1 and Example 2

In Example 1:-

- Michael and Jennifer will not perform what might be said to be the ‘core task’ until 2024 or 2025 and for example, there may be little for Michael or Jennifer to do in 2022, other than convene the meetings and presumably discuss when they might sensible commence to take ‘serious steps’ towards getting things done
- that said, they must convene meetings, become entitled to associated [remuneration and expenses](https://wiki.powersofattorney.com/agententitle#agent-may-be-entitled-to-remuneration-or-expenses), assume [fiduciary](https://wiki.powersofattorney.com/terms#meaning-of-fiduciary) duties owed to the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) and similar, all of is consistent with the ‘commencement’ of the *Power of Attorney*
- the existence of [entitlements](https://wiki.powersofattorney.com/agententitle#agent-may-be-entitled-to-remuneration-or-expenses), [obligations](https://wiki.powersofattorney.com/agentoblig#an-agent-owes-various-duties-to-the-principal) and similar make clear the *Power of Attorney* is on foot

By contrast, in Example 2, Maria's *Power of Attorney*:-

- has literally no operation before 1 January 2029
- is expressed in particular, on terms that reflect it is not intended by Maria that the *Power of Attorney* will be [binding](https://wiki.powersofattorney.com/terms#meaning-of-legally-bind) upon her until 1 January 2029
- if signed by Maria after 1 January 2029 (i.e. [properly executed](https://wiki.powersofattorney.com/creation/requirements#witnessing-acknowledgement-requirements)),
- terms accordingly, seems to clearly fall afoul of [§709.2108(3)](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2108.html) in **Florida**.

###### Examining Example 3

This arrangement is handy, because it means that:-

- while Michael is capable of making decisions a certain regime applies; and
- later in life, a new regime operates (perhaps under which Michael has authority to make decisions on his own and Maria's children may also together exercise authority by agreement); and
- if Michael predeceases Maria or loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs), Maria's children assume office in a scheme designed specifically for circumstances her children are in control, including [directions](https://wiki.powersofattorney.com/directionwhatis#a-direction-regulates-the-core-terms-of-a-power-of-attorney) and [limitations](https://wiki.powersofattorney.com/limitwhatis#a-limitation-regulates-the-core-terms-of-a-power-of-attorney) applicable to circumstances where her children are handling Maria's affairs - rather than Maria's children simply replacing Michael under a scheme designed for when Michael was responsible for all of Maria's affairs

It would be considerably less satisfactory for example, if Maria merely identify Maria's children as [successor agents](https://wiki.powersofattorney.com/successoragents#a-successor-agent-replaces-an-original-agent-who-is-ineligible) to replace Michael under the first *Power of Attorney* because the following issues are unwieldy:-

- a *Power of Attorney* designed to appoint one agent (i.e. Michael) does not easily accommodate appointment of two agents
- issues for management in the wording of the *Power of Attorney* would include whether only one child could replace Michael at any given time
- the first *Power of Attorney* (for Michael) may have fewer [checks and balances](https://wiki.powersofattorney.com/insightrisks#there-are-risk-management-practices-involving-the-terms-of-the-power-of-attorney) as compared to the second *Power of Attorney* intended for use by Maria's children solely if she lacks [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs)

###### Examining Example 4

This arrangement would be particularly problematic in Florida, where is handy, because [§709.2108(3)](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2108.html) also speaks of Powers of Attorney "“*becoming effective*”, stating:-

"..*a Power of Attorney is ineffective if the power of attorney provides that it is to become effective at a future date or upon the occurrence of a future event or contingency”.*

If it were found that the second *Power of Attorney* that is said to “become effective" at some future point in time fell afoul of [§709.2108(3)](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2108.html), it may for example, be declared to lack legal effect.

## Case Study - Military *Powers of Attorney* Raise Interesting Questions

##### Introduction

This [Case Study](https://wiki.powersofattorney.com/casestudies#case-study-military-powers-of-attorney-raise-interesting-questions) identifies two of many questions associated with [military](https://wiki.powersofattorney.com/typescommonlyusedpersons#military-powers-of-attorney) *Powers of Attorney.*

##### Question 1

In **New York**, only a [statutory](https://wiki.powersofattorney.com/typescommonlyusedpersons#statutory-powers-of-attorney) *Power of Attorney*, that is a *Power of Attorney* [created](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) using a [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il) ([§1504](https://www.nysenate.gov/legislation/laws/GOB/5-1504)) is capable of being relied upon for the purpose of the [third party enforcement regime](https://wiki.powersofattorney.com/thirdparty/interests#a-third-party-enforcement-regime-operates-in-five-of-the-six-6-greater-states) operating in New York - would a [military](https://wiki.powersofattorney.com/typescommonlyusedpersons#military-powers-of-attorney) *Power of Attorney* be enforceable in the same manner if it was [created](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) without using a [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il), because a [military](https://wiki.powersofattorney.com/typescommonlyusedpersons#military-powers-of-attorney) *Power of Attorney* is exempt from requirements as to form?

##### Question 2

If a *Power of Attorney* [created](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) in accordance with the laws of **Texas** pertaining to [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#durable-powers-of-attorney) *Power of Attorney* was executed before a military person so as to qualify as a [military](https://wiki.powersofattorney.com/typescommonlyusedpersons#military-powers-of-attorney) *Power of Attorney,* being a *Power of Attorney* in which the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) identified a [protector](https://wiki.powersofattorney.com/protector#protector-ca-tx-il-pa) and an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) sought to use the *Power of Attorney* in **New York**, where the notion of a [protector](https://wiki.powersofattorney.com/protector#protector-ca-tx-il-pa) is not recognized, would the appointment of a [successor agent](https://wiki.powersofattorney.com/successoragents#a-successor-agent-replaces-an-original-agent-who-is-ineligible) designated by the [protector](https://wiki.powersofattorney.com/protector#protector-ca-tx-il-pa) under the *Power of Attorney* be recognized in **New York**?

On one view, [§1044b](https://codes.findlaw.com/us/title-10-armed-forces/10-usc-sect-1044b.html) operates to cure defects as to form, substance or formality and any shortcoming as to preparation or execution and as such, [§1044b](https://codes.findlaw.com/us/title-10-armed-forces/10-usc-sect-1044b.html) does not operate to require **New York** to recognize or give effect to a *Power of Attorney* [created](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) other than in accordance with the laws of **New York**, merely recognize a *Power of Attorney* not executed in accordance with **New York** requirements as to form and execution, so to speak, although [§5-1512](https://www.nysenate.gov/legislation/laws/GOB/5-1512) may bear upon the issues.

What if this question arose in **Illinois**? It seems the combined effect of [§1044b](https://codes.findlaw.com/us/title-10-armed-forces/10-usc-sect-1044b.html) and [§2-10.6](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-2-10-6.html) in **Illinois** (similar to [§5-1512](https://www.nysenate.gov/legislation/laws/GOB/5-1512) in **New York**) presents a basis to suggest there would be no difficulty, in terms of recognizing the actions of the [protector](https://wiki.powersofattorney.com/protector#protector-ca-tx-il-pa).

## Case Study - The Concept of Inception In The Framework

The first part of the [suggested framework](https://wiki.powersofattorney.com/strongframework#a-suggested-framework) for a *Power of Attorney* is 'Inception', dealing with when a Power of Attorney is [binding](https://wiki.powersofattorney.com/terms#meaning-of-legally-bind) upon the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney).

As it stands, many *Powers of Attorney* do not have a clause to the effect "*this Power of Attorney is binding upon me upon me signing this Power of Attorney*"

Without such a clause in a *Power of Attorney*:-

- it is considerably harder to define any other arrangement, because there are no words to modify
- it is inherently less certain what is intended by the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) with respect to when the *Power of Attorney* is intended to be [binding](https://wiki.powersofattorney.com/terms#meaning-of-legally-bind) upon them (such that at any time thereafter, an [agents](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may [accept appointment](https://wiki.powersofattorney.com/agentswhatisagent#how-an-agent-may-accept-appointment-varies-in-the-six-6-greater-states))
- this may be important for example:-

  - in **Florida** where a *Power of Attorney* cannot be cast that "becomes effective" at a future point in time and for the reasons explained [here](https://wiki.powersofattorney.com/creation/create#florida) in this Wiki, the view is taken that the words "become effective" refer to the *Power of Attorney* becoming [binding](https://wiki.powersofattorney.com/terms#meaning-of-legally-bind) upon the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) and the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) wants to make clear that the the *Power of Attorney* is intended to become effective when it signed by the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney), even if the *Power of Attorney* only authorizes [agents](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform certain [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) after a certain point in time
  - in the context of perhaps choosing to include detailed provisions (at the end of the *Power of Attorney*) dealing with circumstances where an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) signs a *Power of Attorney* before it has become effective upon the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney), which would be an unusual but not possibility, particularly in states other than **Florida** where a [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) wants their *Power of Attorney* only be effective upon them at some future point in time, after they have signed the *Power of Attorney* and does not want any confusion arising where an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) signs the *Power of Attorney* before that time (*accepting that without 'detailed provisions' dealing with this issue, such a Power of Attorney might raise a question as to whether acceptance of appointment by an* [*agent*](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) *can be valid where an* [*agent*](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) *purports to accept appointment before the Power of Attorney has become* [*binding*](https://wiki.powersofattorney.com/terms#meaning-of-legally-bind) *upon the* [*principal*](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney))

This example illustrates the importance of actual words in a *Power of Attorney* addressing all relevant issues, rather than short form *Powers of Attorney* that lack the detail necessary to permit tailored arrangements to be crafted.

## Case Study - Fulfilment of Purpose

Imagine a person called Mike has a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#durable-powers-of-attorney) *Power of Attorney* under which Olivia is authorized to manage Mike's financial affairs if the Mike loses [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs).

Mike's *Power of Attorney* cannot [terminate](https://wiki.powersofattorney.com/termmng#termination-refers-to-a-power-of-attorney-coming-to-an-end) by virtue of [fulfilling its purpose](https://wiki.powersofattorney.com/termmng#a-power-of-attorney-terminates-upon-fulfilment-of-its-purpose), because the authorized [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) is to be performed on an ongoing basis.

Having said this, there may be delicate considerations as illustrated in the [Case Study - Temporal Nexus Affects Prospects To Fulfil Purpose](https://wiki.powersofattorney.com/casestudies#case-study-temporal-nexus-affects-prospects-to-fulfil-purpose) below.

## Case Study - Temporal Nexus Affects Prospects to Fulfil Purpose

Imagine a property developer [creates](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) a *Power of Attorney* authorizing [agents](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform certain [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) between departure and return dates for an overseas trip.

Consider that the task they are authorized to perform is *"take all steps to promote to completion the development known as ..."*

Compare that:-

- if the relevant *Power of Attorney* were given at the end of the development to sell the last two apartments in the block, that would actually seem to be a task capable of being fully completed
- if the *Power of Attorney* were given in the first year of the development enable an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) take all steps necessary to progress the development towards the final sale of all units there would be no issue about fulfilment of its purpose

This example illustrates how determining whether the purpose of a *Power of Attorney* could be or has been fulfilled involves examination of all of its terms and surrounding circumstances.