A power of attorney is a legal document that lets a person appoint another person, an agent, to make legal decisions and take legal actions for them.
POWER OF ATTORNEY (POA) FORMS
A general power of attorney, also known as a financial power of attorney, gives the named agent power over financial matters such as banking, investments, real estate, insurance, and taxes. When used in conjunction with a revocable living trust, it provides your successor trustee the power to handle personal and business affairs during a period of disability or incapacity.
What is a Power of Attorney?
What is a durable power of attorney?
A durable power of attorney survives a period of incapacity, disability, or incompetency, independent of whether the named agent's authority continues or takes effect during that period.
What's the difference between a medical power of attorney and a general power of attorney?
A medical power of attorney only addresses healthcare decisions, while a general power of attorney focuses on finances, assets, and legal issues. Both appoint agents to make decisions on your behalf; a medical poa appoints an agent to make health care decisions, and a general (financial) poa appoints someone to handle your financial, asset, and legal affairs.
The different types of Power of Attorney and what they do.
- A general (financial) power of attorney appoints an agent to make legal and financial decisions.
- A health care power of attorney (health care proxy) appoints an agent to make medical decisions.
- A child care power of attorney authorizes decisions on child-related matters, such as school enrollment, and medical emergencies.
- A limited power of attorney provides authority to perform specific actions, such as buying a house or opening an account.
- A durable power of attorney survives incapacity, disability, or incompetency events. A general, medical, or special poa can become durable by including specific language.
Do I need an attorney to create a POA?
Consulting with an attorney is always advisable regarding legal affairs but is not required to execute a power of attorney. There are attorney-designed poa forms available online at considerable savings.
Can I revoke a Power of Attorney?
Yes, you can execute a revocation of power of attorney form or revoke a previous poa by stating such in a new poa.
DURABLE POWER OF ATTORNEY
A durable power of attorney continues in effect or takes effect when the principal is incapacitated or disabled. NUPP Legal provides a durable financial power of attorney that can be customized to take effect immediately or when the principal becomes incapacitated (referred to as a "springing" power of attorney).
Question: Do you need an attorney to create a POA?
Answer: Consulting with an attorney is always advisable regarding legal affairs but is not required to execute a power of attorney. There are attorney-designed poa forms available online at considerable savings.
Does a poa remain in effect during incapacity?
Only if it is a durable poa, if not, it expires upon incapacity.
Should I have a durable financial power of attorney if I have a living trust?
That depends on the assets in the trust and the amount and frequency of management they require. A durable power of attorney would cover personal assets, not assets owned by your living trust. The successor trustee can manage trust assets during your disability or incapacity. A well-designed living trust includes provisions for management during such periods.
Does signing a power of attorney prevent me from making my own legal decisions?
No, you can continue to make your own decisions, keeping in mind that your agent can do so as well. As long as you are competent, you can instruct your agent not to act on your behalf. You can use a limited power of attorney for specific acts and consider a durable or springing power of attorney that becomes effective at a predetermined time or event.
I moved to another state. Do I need a new power of attorney?
A validly signed and executed power of attorney will generally remain valid when you relocate. The Constitution requires every state to honor validly executed documents of other states, such as a power of attorney, living will, trust, and health care directive. Though binding on the government, private institutions may balk at documents in an unfamiliar format. There should be no need to replace it, but you should consider updating based on the agent's location, the location of your assets, and interactions with private institutions.
Consider another power of attorney and advance directive in your new state. You can use the same agent and not revoke the prior power of attorney or advance directive. That way, you are covered on both fronts.
Can I get a power of attorney for a person who is already incompetent?
No, competency is a requirement for appointing an agent. An alternative is to have a court appoint a conservator or guardian. Conservatorships and guardianships are appointments of competent adults over a person unable to make responsible decisions, called a ward. Courts can authorize conservators and guardians to make financial, health care, and legal decisions for the ward.
Can my power of attorney appoint successor agents, like successor trustees in a living trust?.
Regarding a power of attorney, it is referred to as agents acting successively or a successor attorney-in-fact. A power of attorney must state that the agents are to act successively. It is also good to state the conditions upon which a successor may act. Please consult your state statutes. Some states have no provisions for successor attorney-in-fact.
Where should I store a power of attorney?
Store it in a safe place where the agent can access it. Keep it in a safe-deposit box only if the agent has access to that box. The agent should know where to find your power of attorney.
Do I need to file a Power of Attorney publicly?
A power of attorney for the sale and purchase of real estate must be filed with the county land records office. Most others do not.
When does a health care poa end?
It will end upon any of the following events:
The principal dies;
The agent dies, resigns, or becomes incapable;
A court appoints a guardian;
The principal executes a new poa that revokes the present one; or
The principal revokes the poa.
What is a "springing" power of attorney?
It is a power of attorney in which the agent's authority "springs" into effect at a specific time or upon the occurrence of a particular event.
ATTORNEY-IN-FACT
A power of attorney appoints an agent, an attorney-in-fact, who has a fiduciary responsibility to the principal and must act with the highest degree of good faith on the principal's behalf. In addition, the law prohibits the attorney-in-fact from transferring or gifting any of the principal's property to themselves unless the power of attorney authorizes them explicitly to do so. The attorney-in-fact provides a copy of the general power of attorney to individuals or entities with which the attorney-in-fact conducts the principal's affairs.
Who should I appoint as agent?
It would be best if you appointed someone you trust. Your agent has wide-ranging powers, which they can use in or potentially against your best interests. Choose your agent wisely.
Can I appoint multiple agents?
Yes, though it is customary to appoint one agent, you can specify multiple agents. If you choose to have multiple agents, you must designate whether or not they can act independently. Requiring agents to work together may lead to more considered decisions but delays in taking action.
What authority can I grant my agent in a Power of Attorney?
- Sale or purchase of real estate
- Conduct business operations
- Access digital data, electronic accounts
- To invest and reinvest all or any part of your property
- Handle tax matters
- Contract professional services
- Manage retirement plans
- InvestConduct banking
- Pay or collect debts
- Institute legal actions
- Defend against legal attack
- Receive disbursements from established trusts
- Borrow or mortgage
- Manage life insurance or annuities
- Make gifts
- Claim inheritance
- Collect government and military benefits
Is the agent of a power of attorney responsible for the principal's debts?
The agent is not responsible for debts directly incurred by the principal. Unless specified otherwise, the agent is not accountable for debt or losses occurring from acts legally authorized by a power of attorney.
Who cannot be my agent (proxy) for health care?
Your named health care proxy can not be a person paid to give you health care services, residential, social, training, or support services unless that person is your spouse, partner, or relative. In addition, persons under the age of sixteen or incapable of taking care of themselves can not be agents.
Can an agent be reimbursed for personal monies spent on behalf of a principal?
Yes, if it is an expense legally authorized by the power of attorney, the agent can be reimbursed.
Can an agent steal or misappropriate my property?
In many instances, agents have abused their powers, even committing fraud by transferring assets to themselves. Your choice of agent is the most important decision regarding your power of attorney. Make it wisely, trust but verify.
Can I include medical decisions in a financial power of attorney?
A financial power of attorney is not an appropriate instrument for medical decisions. Advance directives such as a health care power of attorney or living will are the proper documents for medical decisions. A health care proxy appoints an agent to make medical decisions while a living will expresses end-of-life decisions regarding medical treatment.
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Will a copy of a power of attorney be accepted?
A photocopy in the absence of the original is unlikely to be accepted. Thus, it is a good idea to execute multiple originals of your power of attorney. Also, consider obtaining a copy of your bank's preferred poa and your hospital's advance directive forms. Executing their forms as well may save your agent time and frustration.
If two agents are appointed to act jointly, what happens if one of them dies?
If one of the agents appointed to act jointly dies, the surviving agent does not have the authority to act alone.
Can a company (business entity) grant Power of Attorney?
Yes, a company is a person under the law. If authorized by company documents, the company can grant Power of Attorney.
Can all Power of Attorneys be revoked?
The principal may revoke a power of attorney made without consideration. Those granted in exchange for consideration may not be revocable.
Is a Power of Attorney valid after death?
No. A power of attorney loses validity when the principal dies.
What are the options after death ends a Power of Attorney?
The terms of the trust dictate the distribution of the principal's assets in a trust. The probate process will rule over estate assets. If it is a small estate (less than $50,000), the personal representative will be empowered to handle most affairs.
What are non-probate options besides trusts?
A widely used option is to designate a beneficiary as payable-on-death (POD) on financial accounts, including bank, investment, and retirement accounts. Contact the financial institution for forms. Other methods include holding real estate as joint tenants or tenants in the entirety.
What if a third-party refuses to honor a Power of Attorney?
The legality of a power of attorney is established law. Nonetheless, it is not uncommon for a third party to refuse to honor one. A frequent objection is the elapsed time since signing. Some institutions prefer their forms. Their reason for refusing may not be legal, but it is often easier to work with them than to litigate the issue.