A POA for property comes into effect immediately upon execution, unless the document specifies otherwise.
A POA for personal care does not come into effect until the grantor is incapable of managing personal care.
In either case, the POA document may specify how incapacity is to be determined in order to trigger the effectiveness of the document, and it is important for anyone considering decisions from an attorney rather than directly from the client or patient carefully reads the original POA documents to determine when it is effective. If the document contains a triggering or effectiveness clause, that criteria must be met before an attorney has authority.
For example, the POA document may require that the family doctor, or two independent physicians, or a licensed capacity assessor, indicate that the grantor has lost capacity to manage property or personal care. The grantor may also select any other person he or she trusts to make this determination; it need not be a health professional or any person with special training in assessments.
If the document indicates that an assessment/confirmation and a finding of incapacity are required to trigger the authority of the attorney, and no method for assessment is specified in the document itself, then the following rules apply:
For a POA-Personal Care
• Assessment by a licensed capacity assessor as defined in the SDA regulations.
For a Continuing POA-Property
• Assessment by a licensed capacity assessor as defined in the SDA regulation,20 or the issuance of a certificate of incapacity pursuant to the Mental Health Act. 21