Power of Attorney | SeniorLiving.com

A power of attorney may be special or limited to one specified act or type of act, or it may be general, and whatever it defines as its scope is what a court will enforce as being its scope. (It may also be temporarily limited.)

Durable power of attorney[edit]

Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes "incapacitated," meaning unable to grant such a power, because of physical injury or mental illness, for example, unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated. This type of power of attorney is called "power of attorney with durable provisions" in the United States or "enduring power of attorney" elsewhere. In effect, under a durable power of attorney (DPA), the authority of the attorney-in-fact to act and/or make decisions on behalf of the grantor continues until the grantor's death.[6]

Health care power of attorney[edit]

In some jurisdictions, a durable power of attorney can also be a "health care power of attorney." This particular affidavit gives the attorney-in-fact the authority to make health-care decisions for the grantor, up to and including terminating care and life support. The grantor can typically modify or restrict the powers of the agent to make end-of-life decisions.[7] In many jurisdictions a health care power of attorney is also referred to as a "health care proxy" and, as such, the two terms are sometimes used interchangeably.[citation needed]

Relationship with advance health care directive[edit]

Related to the health care power of attorney is a separate document known as an advance health care directive, also called a "living will". A living will is a written statement of a person's health care and medical wishes but does not appoint another person to make health care decisions.[8] Depending upon the jurisdiction, a health care power of attorney may or may not appear with an advance health care directive in a single, physical document. For example, the California legislature has adopted a standard power of attorney for health care and advance health care directive form that meets all the legal wording requirements for a power of attorney and advance health care directive in California.[9] Compare this to New York State, which enacted a Health Care Proxy law that requires a separate document be prepared appointing one as your health care agent. Advance health care directives that are legal in all states are increasingly available online, including the MyDirectives advance health care directive in the United States.[10]

Springing power of attorney[edit]

In some U.S. states and other jurisdictions it is possible to grant a springing power of attorney; i.e., a power that takes effect only after the incapacity of the grantor or some other definite future act or circumstance. After such incapacitation the power is identical to a durable power, but cannot be invoked before the incapacity. This power may be used to allow a spouse or family member to manage the grantor's affairs in case illness or injury makes the grantor unable to act.[citation needed] If a springing power is used, the grantor should specify exactly how and when the power springs into effect. As the result of privacy legislation in the U.S., medical doctors will often not reveal information relating to capacity of the principal unless the power of attorney specifically authorizes them to do so.

Determining whether the principal is "disabled" enough to initiate this type of representation is a formal process. Springing powers of attorney are not automatic, and institutions may refuse to work with the attorney-in-fact. Disputes are then resolved in court.

Unless the power of attorney has been made irrevocable by its own terms or by some legal principle, the grantor may revoke the power of attorney by telling the attorney-in-fact it is revoked. However, if the principal does not inform third parties and it is reasonable for the third parties to rely upon the power of attorney being in force, the principal might still be bound by the acts of the agent, though the agent may also be liable for such unauthorized acts.[11]

Standardized forms[edit]

Standardized forms are available for various kinds of powers of attorney, and many organizations provide them for their clients, customers, patients, employees, or members. However, the grantor should exercise caution when using a standardized POA form obtained from a source other than a lawyer because there is considerable variation in approved formats among the states.[citation needed] In some states statutory power of attorney forms are available.[12] Care in using these forms is important because some agents have used their authority to steal the assets of vulnerable individuals such as the elderly (see elder abuse).[citation needed]

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To explain Durable Power of Attorney (DPOA), it's useful to first describe an outdated legal document, the Power of Attorney (POA). The creator of a POA, called a principal, grants another person, called an attorney-in-fact, legal rights to act on the principal's behalf. However, the moment the principal became incapacitated, the POA would be terminated and the attorney-in-fact would have no legal rights. (The disabled principal would then need a guardian; see below.) POAs are rarely used today - according to Hammond, in 16 years of legal practice he has never prepared a standard POA.

To overcome limitations of the POA, state legislatures created the DPOA, which remains in effect after a principal becomes incapacitated. Under a DPOA, a principal names an attorney-in-fact (sometimes called an agent) who will control all the principal's affairs after the principal becomes incapacitated. In effect, the attorney-in-fact or agent becomes a legal guardian for a disabled principal.

A DPOA ensures that an attorney-in-fact will manage all the principal's private matters, including financial and healthcare issues. Instead of naming one DPOA to cover all these contingencies, a person can create a separate Durable Power of Attorney for Healthcare (DPOAHC) or Durable Power of Attorney for Finances (DPOAF). The DPOAHC is limited to making health-related decisions for the principal, while a DPOAF only oversees financial matters for the principal. With all three documents, a principal can carve out certain areas where he doesn't want the agent to take care of his concerns. For example, a principal can state that an agent can pay his property taxes, but the agent cannot sell his house.

Creating a durable power of attorney for finances -- sometimes called a financial power of attorney -- is a good idea for almost everyone with property or an income. It's particularly important, however, if you fear that health problems may make it impossible for you to handle your financial matters.

Why Sign a Power of Attorney

Making a durable power of attorney ensures that someone you trust (usually called your "agent") will be on hand to manage the many practical, financial tasks that will arise if you become incapacitated. For example, bills must be paid, bank deposits must be made, and someone must handle insurance and benefits paperwork.

Many other matters may need attention as well, from handling property repairs to managing investments or a small business. In most cases, a durable power of attorney for finances is the best way to take care of tasks like these.

Avoiding Conservatorship or Guardianship Proceedings

If you don't have a durable power of attorney and you become incapacitated, your relatives or other loved ones will have to ask a judge to name someone to manage your financial affairs. Depending on where you live, the person appointed to manage your finances may be called a conservator, guardian of the estate, committee, or curator.

Conservatorship or guardianship proceedings can be expensive and embarrassing. Your loved ones must ask the court to rule that you cannot take care of your own affairs -- a public airing of a very private matter. Court proceedings are matters of public record; in some places, a notice may even be published in a local newspaper. And if relatives fight over who is to be the conservator or guardian, the proceedings will surely become even more disagreeable, sometimes downright nasty. All of this causes costs to mount up, especially if lawyers must be hired. (For more information, see Conservatorships and Adult Guardianships.)

If You Think You Don't Need a Durable Power of Attorney

You may not think that you need a durable power of attorney for finances if you're married or if you've put most of your property into a living trust or you hold it in joint tenancy. But the truth is that in all of these situations, a durable power of attorney can make life much easier for your family if you become incapacitated.

What is a Power of Attorney?

A Power of Attorney is a document which gives another party the legal authority to act on your behalf in order to manage your legal and financial affairs. The power given can be very broad to allow complete control over all your finances and property, or it can be limited to a specific task. A power of attorney is crucial to have when planning for future incapacity or extended absences from home.

9 easy steps to create your own Power of Attorney

LawDepot is the leading publisher of do it yourself legal documents and uses an easy step by step format that allows anybody to create their own legal document within minutes.

Below are 9 easy steps that allow you to create your own power of attorney on LawDepot:

Select your state
Type the principals (the person the power of attorney is for) name, address, city and state
Select an attorney-in-fact

-An attorney-in fact is given authority to act in your best interest, keep accurate rounds of dealings/transaction on your behalf, to act for you with the utmost good faith and keep property separate from their own

Select an alternative attorney-in-fact
Choose either ordinary or durable for type of power of attorney

-An ordinary power of attorney is only valid as long as the principal is capable of acting for him or herself

-A durable power of attorney is intended to remain in force in the event that the principal later becomes mentally incompetent

Decide if you want to place restrictions on your attorney-in-fact such as not selling a particular piece of real estate
Choose if you want to compensate your attorney-in-fact by paying for their services or just for out of pocket expenses
Select what state the document will be signed and you will also need a witness to sign your document once it has been printed
Preview your document, purchase and print

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