it would only be valid, if there are doctor or doctors which identified that the principal is indeed incapacitated. However, it may pose some problems since mentally incapacitated is defined subjectively and difficult to determine. So it is not recommended that durable power of attorney would be springing. So it is a wise move to have someone take care of your properties while you are away. What will happen if you don t have an attorney-in-fact and you are incapable of acting or deciding for your affairs? The court will then use its discretion in deciding who will be in charge of making decisions regarding your finances, properties, or health care. The law usually allows the agent to transfer your assets to your spouse (if your agent is not your spouse). However, the law does not allow him/her to transfer any of your properties to any other individuals, even your children. Always seek the assistance and guidance of your private attorney when making or drafting the content and provisions of your power of attorney. Power Of Attorney And Its Validity Power of attorney can be a tricky thing to do because you are basically giving another person full right to act in your stead in personal and legal matters. This means that the person who you have given the power of attorney to, which is called the agent or the attorney in fact, will have the right to sign legal documents in your name and even have access to your bank accounts, among other things. One of the most important considerations in creating a power of attorney is how much power you must grant your attorney-in-fact or agent to protect your properties, finances, and interests from abuse. Since the courts do not regulate powers of attorney, the powers may be misused by an attorney-in-fact. Laws on how the power of attorney should be created are different on each state. For example, in South Carolina, the preparation for the power of attorney is the same as preparing for a will. In California, notarization in the documents is important but this may not be the case in some states. This is why it is important to have knowledge on legal matters and employ legal assistance when making the document.