The Importance of Durable Power of Attorney in Puerto Rico

Ensuring Protection and Peace of Mind

In Puerto Rico, the implementation of Act No. 25 on January 18, 2012 introduced a significant legal provision known as the “Durable Power.” Similar to the concept of a “Durable Power of Attorney” in the United States, this arrangement involves the execution of a public deed designating a trusted individual to carry out specific actions concerning the grantor’s real and/or personal property. This legal tool proves particularly valuable when a person faces an early diagnosis of Alzheimer’s, senile dementia, or any concerns about future mental capacity. By appointing a trusted representative, individuals aim to safeguard their assets and avoid costly legal procedures related to incapacity or guardianship.

Understanding the Durable Power of Attorney

In essence, the Durable Power in Puerto Rico constitutes an agency agreement established through a public deed. An agency agreement involves one person committing to providing a service or performing specific tasks on behalf of another person. What sets the Durable Power apart from other agency agreements is that it remains valid even if the grantor becomes incapable of managing their own assets. This means that the authorized actions specified in the mandate still hold weight in the event of incapacity or legal declaration of incapacity.

The Execution Process and Requirements

To ensure the validity of a Durable Power in Puerto Rico, it must be executed through a public deed in the presence of a notary attorney. The deed should explicitly state the enduring nature of the power. Additionally, it is crucial for the grantor to be of sound mind and lucid during the execution. The grantor should also provide a clear description of any real estate properties, especially the residence, in the deed. Furthermore, the powers granted can be tailored to exclude specific assets or acts as desired by the grantor. The grantor retains the right to amend or revoke the Durable Power whenever necessary. The termination of the Durable Power can occur through revocation by the grantor, the agent’s resignation, or as a result of the grantor or agent’s death, bankruptcy, or insolvency.

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The Case for Proactive Planning

The recent case of ASR v. Ex Parte Procurator of Family Relations, 2016 TSPR 239 (2016), highlighted the challenges that arise when a person becomes incapacitated without having a Durable Power of Attorney in place. In this particular case, a mother had to initiate legal proceedings to declare her daughter incapacitated and appoint a guardian. Unfortunately, the court’s decision took one year and seven months to materialize. With a pre-existing Durable Power, the mother, as the designated agent, would have been able to manage or dispose of the incapacitated person’s assets without delay.

By executing a Durable Power of Attorney, individuals in Puerto Rico can proactively secure their assets and save themselves and their loved ones from potential legal complications. Don’t wait for uncertainties to arise; take control of your future by putting the necessary safeguards in place.

For more information on the Durable Power of Attorney and other legal services, please visit Garrity Traina.