Introduction: Power of attorney is a legal document that allows one person (known as the “principal”) to grant authority to another person (known as the “agent” or “attorney-in-fact”) to act on their behalf in certain situations. Power of attorney is an essential estate planning tool that can help ensure that your wishes are carried out, even if you become incapacitated or unable to make decisions for yourself. In this guide, we’ll explore the different types of power of attorney, the steps to create a power of attorney, and how to use it effectively.
What is Power of Attorney?
Power of attorney is a legal document that grants the agent the power to act on behalf of the principal in certain situations. There are different types of power of attorney, each with its own specific purpose and scope.
Types of Power of Attorney
There are several different types of power of attorney, including:
General Power of Attorney
A general power of attorney grants the agent the authority to act on behalf of the principal in a wide range of situations. This type of power of attorney is typically used when the principal is unable to handle their affairs due to illness, disability, or absence.
For example, a general power of attorney may allow the agent to sign contracts, manage finances, and make health care decisions on behalf of the principal. However, a general power of attorney ends when the principal becomes incapacitated or dies.
Limited Power of Attorney
A limited power of attorney grants the agent the authority to act on behalf of the principal in a specific situation or for a specific period of time. For example, a principal may grant a limited power of attorney to their agent to handle a real estate transaction or sign a contract on their behalf.
A limited power of attorney is ideal for situations that require a specific action or decision to be made. This type of power of attorney ends when the specified task is completed or the time period expires.
Durable Power of Attorney
A durable power of attorney is a type of power of attorney that remains in effect even if the principal becomes incapacitated or unable to make decisions for themselves. This type of power of attorney is particularly important for individuals who have a chronic illness or are elderly.
For example, a durable power of attorney for health care allows the agent to make medical decisions on behalf of the principal if they become incapacitated. A durable power of attorney for financial matters allows the agent to manage the principal’s finances if they are no longer able to do so. A durable power of attorney is effective until the principal revokes it or dies.
Springing Power of Attorney
A springing power of attorney is a type of power of attorney that only takes effect if the principal becomes incapacitated or unable to make decisions for themselves. This type of power of attorney is often used in estate planning to ensure that the principal’s wishes are carried out in the event of their incapacity.
For example, a springing power of attorney may grant the agent the authority to manage the principal’s finances or make health care decisions if the principal becomes incapacitated. This type of power of attorney is effective only when the specified triggering event occurs.
How to Create a Power of Attorney
Creating a power of attorney involves several steps, including:
Choosing an Agent
The principal should carefully consider who they want to appoint as their agent. The agent should be someone who is trustworthy, responsible, and has the necessary skills and knowledge to carry out the tasks assigned to them.
It’s important to choose someone who will act in yourbest interests and follow your wishes. In addition, it’s important to choose an alternate agent in case the first choice is unavailable or unwilling to act as your agent.
Drafting the Power of Attorney
The power of attorney should be drafted in accordance with state laws and should clearly state the scope of the agent’s authority. It should also specify any limitations or conditions on the agent’s authority.
The power of attorney should be clear and concise, outlining the specific duties and responsibilities of the agent. It’s important to work with an experienced attorney to ensure that the power of attorney is drafted correctly and meets your specific needs.
Signing and Notarizing the Power of Attorney
The power of attorney should be signed by the principal in the presence of witnesses and notarized. The witnesses should be individuals who are not named as beneficiaries in the power of attorney.
It’s important to follow the specific requirements of your state regarding the signing and notarization of a power of attorney. Failure to comply with state laws could result in the power of attorney being deemed invalid.
When to Use a Power of Attorney
A power of attorney can be used in a variety of situations, including:
Health Care Decisions
A power of attorney for health care allows the agent to make decisions about the principal’s medical care in the event that the principal is unable to do so.
For example, if the principal is in a coma or has dementia, the agent can make decisions about their medical treatment, including whether to provide or withhold life-sustaining treatment. This is also called a living will. You can find more details on creating a living will here.
Financial Matters
A power of attorney for financial matters allows the agent to manage the principal’s financial affairs, including paying bills, managing investments, and filing tax returns.
For example, if the principal is no longer able to manage their finances due to illness or disability, the agent can step in and ensure that bills are paid, investments are managed, and taxes are filed. We’ve created a guide on financial power of attorney here.
Real Estate Transactions
A power of attorney for real estate transactions allows the agent to handle the buying or selling of real estate on behalf of the principal.
For example, if the principal is unable to attend the closing of a real estate transaction, the agent can sign the necessary documents and complete the transaction on their behalf.
FAQs
Q1: Can a power of attorney be revoked? A: Yes, a power of attorney can be revoked at any time by the principal, as long as they are of sound mind and able to make decisions for themselves. The revocation should be in writing and signed by the principal.
Q2: Can a power of attorney be used after the principal’s death? A: No, a power of attorney is only valid during the principal’s lifetime. After the principal’s death, the executor of their estate takes over and manages their affairs.
Q3: Do I need a lawyer to create a power of attorney? A: It is not necessary to have a lawyer to create a power of attorney, but it is recommended. A lawyer can ensure that the power of attorney is drafted in accordance with state laws and can provide guidance on the scope of the agent’s authority.
Q4: Can a power of attorney be used to make decisions about end-of-life care? A: Yes, a power of attorney for health care allows the agent to make decisions about the principal’s end-of-life care, such as whether to withhold or withdraw life-sustaining treatment.
Q5: Can a power of attorney be used to transfer property? A: Yes, a power of attorney for financial matters can allow the agent to manage the principal’s property, including transferring property to another person.
Final Thoughts
In conclusion, power of attorney is an important legal document that can help ensure that your wishes are carried out in the event that you are unable to make decisions for yourself. There are different types of power of attorney to suit different situations, and it’s important to choose the right type of power of attorney and appoint the right person as your agent. By following the steps outlined in this guide, you can create a power of attorney that gives you peace of mind and protects your interests.
It’s also important to periodically review your power of attorney to ensure that it still reflects your wishes and meets your current needs. Life events such as marriage, divorce, or the birth of a child may require changes to your power of attorney.
Lastly, it’s recommended that you work with an experienced attorney to create a power of attorney that meets your specific needs and complies with state laws. A lawyer can also provide guidance on how to use your power of attorney effectively and avoid common pitfalls.
