Finance
Instrument: Power of attorney (POA)
What is it for?
The POA is an alternative to guardianship that allows an adult (the “principal”) to appoint one or more other persons (the “agent(s)”) to make property decisions for the principal.
What does it do?
A validly executed POA transfers property decision-making authority from the principal to the agent. Third parties are generally obligated to accept a duly executed POA with few exceptions, such as actual knowledge that the POA had been terminated, and may be liable for damages if they fail to do so. Ala. Code § 26-1A-120. Third parties may request that the agent certify in writing that the POA is valid. Ala. Code § 26-1A-119.
In acting on the principal’s behalf, the agent must follow the principal’s reasonable expectations, act in good faith, and act only within the scope of authority granted in the POA instrument itself. If the principal’s expectations are unknown, the agent must make reasonable efforts to ascertain the principal’s expectations. Otherwise, the agent must act in the principal’s “best interest.” Ala. Code § 26-1A-114.
The POA is durable unless the POA expressly provides that it is terminated by the incapacity of the principal. Ala. Code § 26-1A-104.
How does one make it?
A POA must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the POA. A signature on a POA is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments. Ala. Code § 26-1A-105.
When does it come into effect?
Immediately, unless the POA specifies otherwise, such as based upon the occurrence of a future event or contingency. If the POA specifies that it becomes effective in the event of the principal’s incapacity, and the principal has not specified a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the agent’s power becomes effective upon a determination in a writing or other record either by a physician, licensed psychologist, an attorney-at-law, a judge, or an appropriate governmental official that the principal is “incapacitated” as defined by either Ala. Code § 26-1A-102(5)(A) or (B). Ala. Code § 26-1A-109.
How long does it last?
The POA ends when the principal dies; the principal becomes incapacitated (if the POA is not durable); the principal revokes the POA; the POA provides that it terminates; the purpose of the POA is accomplished; the principal revokes the agent’s authority; or the agent dies, becomes incapacitated, or resigns, and the POA does not provide for another agent. Ala. Code § 26-1A-110..
How does one end it?
The principal may revoke a POA, but Alabama law does not expressly state how the principal does so. (Alabama law does specify how a principal can revoke a health care POA, however, at Ala. Code § 26-1-404(c)(1).) Execution of a subsequent POA does not automatically revoke a prior POA unless the subsequent POA expressly provides. Ala. Code § 26-1A-110.
What does an example look like?
Alabama law provides a statutory form at Ala. Code § 26-1A-301. Relatedly, an “Agent’s Certification” form is provided at Ala. Code § 26-1A-302. Also, the Alabama Cooperative Extension System provides a sample form here.
What else should one know?
Alabama’s POA is based on the Uniform Power of Attorney Act. Note that POAs executed prior to January 1, 2012 are governed by Ala. Code § 26-1-2.
Last updated April 2021
Education
Instrument: Educational representative
What does it do?
An educational representative is responsible for giving the informed consent generally required for IDEA services from either a parent or an adult student. These educational decisions include approving their individualized education programs (IEPs), consenting to changes of placement or reevaluations, requesting due process hearings, and other important educational rights.
How does one make it?
Per Alabama Department of Education policy dated May 2008, a local education agency (LEA) can appoint an educational representative for an adult student who is “unable or incapable of providing informed consent with regard to his or her educational program.” This determination is made in writing by two professionals who personally examine the student.
“Unable to provide informed consent” means that the student is unable either “to understand the nature, extent, and probable consequences of a proposed educational program or option, on a continuing or consistent basis;” “to make a rational evaluation of the benefits or disadvantages of a proposed educational decision or program as compared with the benefits or disadvantages of another proposed educational decision or program, on a continuing or consistent basis;” or “to communicate such understanding in any meaningful way.”
Generally, the LEA appoints the adult student’s parent as educational representative, unless the parent is unavailable. Ala. Admin. Code r. 290-8-9-.08.
When does it come into effect?
The certification that the adult student is unable to provide informed consent may be made as early as 90 calendar days prior to the adult student’s 19th birthday. While not specified, it appears that it can come into effect upon the student’s 19th birthday, or after, as soon as the LEA appoints the representative.
How long does it last?
Educational representative appointments last one year. For the initial appointment to be extended, two professionals must recertify that the student remains “unable to provide informed consent” at least once per year. The educational representative appointment ends when the student stops receiving special education services.
How does one end it?
Either the student or anyone with a “bona fide interest in and knowledge of the student” may challenge either the certification or the educational representative appointment at any time. The challenge generally must be made in writing to the LEA’s director of special education. A student may also make a verbal challenge or use an alternative form of communication. The LEA must restore the student’s right as soon as the LEA receives the challenge.
What does an example look like?
The Alabama Department of Education provides a sample certification form on pages 7–8 of its policy.
What else should one know?
The educational representative appointment can only be used when students become adults, which is at 19 years old in Alabama. Ala. Code § 26-1-1.
Last updated April 2021
Health
Instrument: Health care power of attorney (POA)
What is it for?
The health care POA is a POA that applies specifically to health care decisions. The principal may appoint an individual (the “attorney in fact” or “agent”) who shall be empowered to make health care decisions on behalf of the principal, if in the opinion of the principal’s attending physician the principal is no longer able to give directions to health care providers. Ala. Code § 26-1-404(c)(1).
What does it do?
This type of POA empowers an attorney in fact to make health care decisions for the principal. The decisions the attorney can make are limited to those that the principal could make but for the lack of capacity to make a decision. However, the attorney in fact may not decide to undergo psychosurgery, sterilization, abortion when not necessary to preserve the life of the principal, or involuntary hospitalization or certain other treatments. Ala. Code § 26-1-404(c)(1).
The health care POA is considered “durable” if it contains the words “This power of attorney shall not be affected by disability, incompetency, or incapacity of the principal” or “This power of attorney shall become effective upon the disability, incompetency, or incapacity of the principal” or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability, incompetency, or incapacity. Ala. Code § 26-1-404(b).
How does one make it?
As with a POA, the health care POA must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the power of attorney. A signature on a POA is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments. Ala. Code § 26-1A-105.
When does it come into effect?
The attorney in fact’s ability to make decisions comes into effect when, in the opinion of the principal’s attending physician, the principal is no longer able to give directions to health care providers. Ala. Code § 26-1-404(c)(1).
How long does it last?
As with the POA, the health care POA ends when the principal dies; the principal becomes incapacitated (if the POA is not durable); the principal revokes the POA; the POA provides that it terminates; the purpose of the POA is accomplished; the principal revokes the agent’s authority; or the agent dies, becomes incapacitated, or resigns, and the POA does not provide for another attorney in fact. Ala. Code § 26-1A-110.
How does one end it?
A durable POA executed pursuant to this section may be revoked by written revocation signed and dated by the principal or person acting at the direction of the principal, or being obliterated, burnt, torn, or otherwise destroyed or defaced in a manner indicating intention to cancel or by a verbal expression of intent to revoke made in the presence of a witness 19 years of age or older who signs and dates a writing confirming an expression to revoke. Ala. Code § 26-1-404(c)(1).
What does an example look like?
Alabama does not provide a statutory health care POA form.
What else should one know?
No physician or other health care provider, and no health care service plan, health maintenance organization, insurer issuing disability or life or health insurance, self-insured employee welfare benefit plan, nonprofit medical service corporation, or mutual nonprofit hospital or hospital service corporation shall require any person to execute a durable power of attorney with respect to health care decisions as a condition for being insured for, or receiving, health care services. Ala. Code § 26-1A-404(c)(10).
An attorney in fact may make decisions regarding provision, withholding, or withdrawal of life-sustaining treatment and artificially provided nutrition and hydration if the health care POA expressly provides. Ala. Code § 26-1-404(c)(2). Note that in Alabama a “health care proxy” is a separate instrument that regards providing, withholding, or withdrawal of life-sustaining treatment and artificially provided nutrition and hydration. Ala. Code § 22-8A-4(b).
Last updated April 2021
General
No information available at this time.