senior couple signing power of attorney form

Power Of Attorney The Complete Guide 2021

Whether you are preparing for the future, an unexpected event, or traveling and want to appoint a person to represent you and act on your behalf, a power of attorney can protect you. Unexpected things happen. You may end up in a situation where you are caring for a loved one who becomes incapacitated, or you may be the one who needs that special care. There are different types of power of attorneys. Common types include financial power of attorney, medical power of attorney, and durable power of attorney.

 

Having the right documents in place can help make things easier for your family and protect your finances and health care choices.

 

What is power of attorney (POA)?

A power of attorney is a legal form or document. In this document, you appoint a person to manage your finances, property, or medical affairs, if you cannot. The type of POA you want depends on your needs.

You can give different levels of control to your agent. Your agent is the person you appoint to make your decisions. The principal is the term used to refer to the one who wants someone to act on their behalf, meaning the one who wants to appoint an agent.

 

What does Power of Attorney Mean?

There are several different kinds of power of attorney. Depending on what type of POA you have, the agent can have limited or broad legal authority.

A POA is commonly used when someone (the principal) can’t be present to sign legal documents or if the principal has a disability or illness, and they need someone to act on their behalf.

Naming an agent in a POA does not prevent you from making decisions or conducting business for yourself. If you and the agent disagree,  it is your decision that governs.

However, suppose the agent believes the principal lacks the mental capacity to make decisions. In that case, the agent can file a guardianship proceeding. A guardianship proceeding is asking the court to determine whether the principal is mentally incapacitated.

 

What can a power of attorney do?

The authority given to an agent in a POA document varies depending on how the documents are written. The powers can be limited or extensive depending on the type of POA.  For example,

The agent who has been granted the financial power of attorney can:

  • Get access to the principal financial accounts. They can also pay for their health care, housing, and other recurrent bills
  • Make investment decisions and manage finances on behalf of the principal
  • Demand and pay all the principal debts
  • Manage all the principal properties
  • Apply for public benefits, for example, Medicaid
  • File taxes for the principal

 

What Can’t a POA Do?

The agent must always act in a way that shows he is making decisions for the principal’s best interest. Typically an agent should not:

  • Go against their fiduciary duties.
  • Make any decision after the principal death, unless the principal had listed them as the executor.
  • Make a will or change a principal’s will.
  • Transfer POA or change POA to someone different. The POA can choose to decline the appointment at any time. However, the agent cannot appoint someone else as POA.
  • Make decisions or act on their behalf after the principal dies. A POA ends when a principal dies. However, the POA can be named executor in your will. In addition, if one dies without a will, the agent can petition to be the estate administrator.
  • Make and sign a contract to get paid for personal services the agent provides to the principal.

 

senior woman signing medical power of attorney form

 

Different Types of POA

What is a General Power of Attorney?

A general POA gives your appointed agent broad authority to act on your behalf. The agent has the power to do all the acts listed in the POA document. Your agent could:

  • handle business and financial transactions
  • manage bank accounts
  • sign checks
  • make gifts
  • settle claims
  • make gifts
  • file taxes
  • buy life insurance, and
  • employ professionals

If you are mentally or physically not able to manage your affairs, a general POA may be helpful. Commonly, a general POA is included in estate planning to have someone take care of your financial affairs.

 

What is a Special Power of Attorney or Limited Power of Attorney?

A special power of attorney is when you specify precisely what powers you want your agent to have. It is a limited power of attorney. This is an effective tool when you can’t take care of certain affairs because you have a conflict or other reasons. For example, you may want to specify in a special POA someone to:

  • sell property
  • collect debts
  • manage your retirement accounts, or
  • handle a specific business transaction

 

doctor talking to health care power of attorney while walking in hospital hallway

 

 

What is a Health Care Power of Attorney or Medical Power of Attorney?

A medical power of attorney is also called a health care power of attorney. It gives your agent the authority to make your health care decisions if you become incapacitated. Incapacitated means you are mentally incompetent or unconscious. As with any POA, it is best to choose a trusted family member or close friend.

Some states allow you to include your preferences about life support. Some states allow you to combine both a living will and medical POA into an advanced health care directive.

 

What Can a Healthcare Power of Attorney Do?

A medical power of attorney can give the health care agent authority to:

  • Decide the kind of medical care you receive. This could include things like home care, hospital care, surgery, or psychiatric treatment.
  • Decide on the type of doctor and caregivers involved in your care.
  • Decide where you will reside while receiving care, for example, a skilled nursing facility or home health care.

 

What is a Financial Power of Attorney?

A financial power of attorney is when an agent is appointed to make financial decisions for you. Depending on how your financial POA is worded, it can take effect immediately. Or, it can become effective if a particular event happens, for example, if you become incapacitated.

If a financial POA only becomes effective if you become incapacitated, (for example, you are in a coma or have dementia) one or more physicians have to certify that you cannot make decisions. This is frequently called a springing power of attorney because the POA only becomes effective if the principal becomes incapacitated.

What Can a Financial Power of Attorney Do?

A financial POA can:

  • file your taxes
  • make investment decisions
  • manage your property
  • access financial accounts to pay bills, and
  • apply for public benefits on your behalf (like Medicaid or veterans benefits)

 

What is a Durable Power of Attorney?

Unless your POA says otherwise, your agent’s authority ends if you become mentally incapacitated. However, you can have your POA document specify it will remain in effect even if you become incapacitated or mentally incompetent. If your POA states this, that it is called a Durable Power of Attorney.

A durable POA can have specific language so the agent only has authority to act on your behalf if you happen to become incapacitated or unable to.  On the other hand, you can have the durable power of attorney take effect immediately and continue in effect even if you become incapacitated.

A durable power of attorney can be either limited or general, and it extends beyond incapacitation. For example, some types of durable power of attorneys include:

  • A durable power of attorney for healthcare, also called a durable medical power of attorney. This medical power of attorney lets you name someone you trust as a healthcare proxy to make your medical decisions.
  • A durable power of attorney for finances. This POA allows an agent to manage your financial and business matters, for example, filing taxes, signing checks, or managing investment accounts.

 

mother asking adult daughter to be durable power of attorney

 

How to Choose a Power of Attorney?

Who do you trust? You want someone to look out for your best interests and follow your wishes. Additionally, choose carefully someone who will not abuse their powers.

Your agent should keep good records of the transactions they have completed on your behalf. This way you can review them ( or someone can review them for you).

It is a good idea to prepare POA documents before becoming incapacitated or dependent on others. For example, appointing a medical power of attorney in the event you are not able to make medical decisions. Suppose there is an accident, or you somehow become incapacitated. With no POA in place, it makes it more challenging for your family. The POA helps the family take care of things and make important decisions on your behalf.

 

How to Obtain Power of Attorney? How to Become Power of Attorney?

You can become someone’s POA if they appoint you as their agent. If you agree, your name will be placed in the POA form.

The principal must ensure the POA complies with state requirements. Once the POA is filled out, it must be validated following the laws of your state. This means the POA has the correct signatures, witnesses, and it is notarized, as applicable per the state requirements.

How to Get Power of Attorney for Elderly Parent?

You get the power of attorney when someone knowingly and willingly appoints you as their agent in their POA document. The POA form must have been created and validated following the laws of the state you live in.

Your parent needs to have the legal capacity to grant you POA. Generally, legal compacity means your parent can make an informed, willful decision. This means they:

  • understand what a valid POA document does
  • the consequences of having the POA
  • can communicate their choice and reasons why they made that choice

In other words, your parent must comprehend what the POA document is and the effects of them signing it. If your parent does not have the capacity to grant you power of attorney, there are alternatives to consider. For example, Adult Guardianship (also called a Conservatorship), which is a more complicated legal option.

 

 

 

 

happy senior couple sitting outside on park bench holding hands

 

Does Power of Attorney Override Spouse?

A power of attorney only authorizes the designated agent to act on behalf of the principal, not on behalf of the principal’s spouse. The spouse can not terminate or change the principal’s POA. Frequently spouses grant each other POA, but if this is not the case, the principal should make it clear what a POA authorizes their designated agent to do.

  • If a principal designates a non-spouse as an agent in their medical power of attorney, that non-spouse agent’s decision trumps the medical decisions of the spouse.
  • If a principal designates a non-spouse as an agent in their financial POA, this authority is limited to the principal’s separate, personal assets. This non-spouse agent does not have authority over jointly owned (by both spouses) marital property. Instead, the spouse has the right to manage the marital property.

 

 

Where can I get a Power of Attorney Form? How to Get a Power of Attorney Form?

Your POA document must comply with your state’s specific legal requirements. Before creating or buying a POA document, research whether your state mandates specific language or formalities (like witnesses and signing in front of a notary) for making your forms legally valid.

You can get a POA form online. Many states provide sample forms or downloadable POA forms online compliant with their state-specific laws. If your state does not have sample forms available, you can buy a POA form from an office supply store in your state.

Another option is to use a legal services provider online to create a valid POA. When using an online provider, usually you answer some questions, and your answers populate into the form.

Although it is not required to have a lawyer draft your POA, seeking the help of an attorney may be a good idea.  A licensed elder law attorney or an estate planning attorney can create a valid POA document for you. If you have questions about a POA, or your situation is complicated, working with a lawyer can provide valuable insight and peace of mind.  The attorney will usually help with the legal formalities to ensure the form is valid. This means you do not have to locate witnesses or a notary public on your own.

 

 

last will and testament document

 

Can a Power of Attorney Make or Change a Will?

A power of attorney can not make, amend or revoke the principal’s will.

 

 

How to Revoke Power of Attorney? How to Cancel  Power of Attorney?

Relationships and circumstances change, so there may come a time when you want to revoke or cancel your power of attorney. Whether the person you chose doesn’t seem right for the job anymore or another situation makes you reconsider, you can cancel your current POA and get a new one.

You may revoke a POA at any point in time if you are mentally competent. Two ways to reverse or revoke your POA:

  • In writing: You must notify your agent in writing. The written document must comply with your state’s laws, and commonly it must be signed in front of a notary. Some states have a revoking power of attorney form.
    • You must notify your agent in writing and get all the copies of your power of attorney.
    • Ensure you notify the financial institutions to know that POA has been revoked (or canceled).
    • If the POA has been registered, you can revoke it by filing the written revocation at the registrar deed office where you filed the original POA.
  • A new power of attorney. You can transfer POA to another person by signing a new power of attorney that states you revoke the previous POA.

Suppose someone wants to revoke their POA, but you don’t think they are competent. In that case, you may consider consulting with an attorney specializing in guardianships or elder law because guardianship may be required at this point.

 

Does a Power of Attorney Need to Be Notarized?

Each state has its regulations for creating and validating a POA. Some states require notarization, but others may not. It is essential to understand what your state requires to make a valid POA and whether a notary must sign the document. The notary’s role is to verify the principal voluntarily signed the POA because the document grants a lot of power and the states want to minimize fraud.

 

Does Power of Attorney End at Death? Is Power of Attorney Valid After Death?

 The POA is no longer valid when someone is deceased. Power of attorney documents terminates when the principal dies.

 

Does Power of Attorney Expire? How Long Does Power of Attorney Last?

Power of attorney privileges can be removed by:

  • A termination date. If the principal added a termination date in the POA document, then the privileges are finished on that date. A principal may include an exact date and time they want the POA to terminate. This is helpful, for example, if someone is going out of the country for some time. If there is no termination date, then the POA is valid indefinitely, also called durable.
  • Death – a power of attorney is terminated upon the principal’s death.
  • Revocation – a competent principal can revoke a POA at any time.

 

 

 

 

man signing power of attorney form

 

How to Sign as Power of Attorney?

When you sign a document as someone’s POA agent, make sure your signature makes it clear that you are signing the document under the authority of a power of attorney. Before signing, ask if there’s a specific format for your signature. Sometimes places like banks or other institutions will only accept a POA signature if written a particular way. Most importantly, don’t sign your name or the principal’s name without indicating that you are signing under the authority of a POA.

Also, on a side note, if you are the designated agent and going to sign a document as POA, make sure you bring a copy of the POA document with you in case the institution does not have a copy.

When an agent signs a document, the signature has the same legal effect that the principal’s signature would have (if they could sign themselves). In other words, the agent’s signature is just as legally binding as the principal’s signature.

When signing as an agent, first sign the principal’s full legal name. You can write the word ‘by’ right next to it, and then the agent signs their name. After the agent’s name, the agent can identify themselves as an agent by writing either POA, Agent, Power of Attorney, or Attorney in Fact.  Some examples are:

Macie Dibbert, by Katie Timberland, POA

Emerson Parisian, by Jany Sanchez, power of attorney

Rudolph Smith, by Amya Smith, attorney in fact

Mark Kuvalis, by Dennis Kuvalis, agent

 

Summary

Power of attorney forms can be extremely valuable and are frequently part of estate planning. However, it would be best to choose a trustworthy agent because a POA may be dangerous in the wrong hands. There are different types of power of attorney, for example medical power of attorney, financial POA, or durable POA. Before you create a POA document, carefully evaluate who you want to be your agent, someone with your best interests in mind.

 

Note: A power of attorney can be a valuable tool for advance care planning. To learn more about advance care planning, including advanced directives, living wills, Do Not Resuscitate (DNR) orders, and more, read our post Advance Care Planning: The Complete Guide 2021.

 

References

American Bar Association, Power of Attorney, https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/power_of_attorney/

Cornell Law School, Durable Power of Attorney, https://www.law.cornell.edu/wex/durable_power_of_attorney

 

 

 


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