Deciding Whether Power of Attorney is Right for You and Your Loved One
1Talk to your loved one. If your loved one is ill and may be unable to make medical or financial decisions in the future, he or she may decide to grant power of attorney to someone. It is easiest to obtain power of attorney with the permission of the person who may need to turn over decision-making rights (this person is known as the “principal”). In order for someone to grant power of attorney, he or she must be of sound mind. Talk to your loved one to make sure he or she understands what it means to sign over power of attorney. You must emphasize that they will vacate their decision-making authority.
2Choose someone to be the agent. Because the decisions that the person holding power of attorney makes are legally considered the decisions of the principal, it’s vital that the agent be someone you trust absolutely and without question. Consider the following when thinking about possible agents:
- Consider how close the candidate is to the principal. The agent should be someone who knows the principal well so s/he can make decisions that would align with the principal’s wishes and values. If medical and/or end-of-life decisions are included in the power of attorney, the agent should be aware of the principal’s religious beliefs and wishes. Geographic proximity may also be desirable.
- Consider whether the candidate is in good health. An agent should be in good health and not likely to become incapacitated. Otherwise, s/he may not be able to carry out decisions on the principal’s behalf.
- Consider whether you may wish to assign different agents for financial and medical decisions. Power of attorney is a huge responsibility. You may wish to discuss granting separate financial and medical powers of attorney to different people. This will reduce the burden on one person.
3Determine what type of power of attorney is needed. People can be granted power of attorney to act on medical or financial matters. A medical power of attorney enables someone to make medical decisions for a person who has become incapacitated. A financial power of attorney enables someone to make financial decisions for the person who grants it. Granting one type of power of attorney does not grant the agent rights to make other decisions. For example, granting a medical power of attorney will give the agent rights to make health care decisions, but not financial decisions such as buying or selling property.
- A springing power of attorney does not go into effect until a specified qualification is met. Typically, power of attorney is granted following the incapacitation of the principal.
- A durable power of attorney goes into effect immediately. It continues to be valid when the person who grants it becomes incapacitated. If the word “durable” is not specified, the power of attorney is voided when the person who granted it becomes incapacitated.
- A springing durable power of attorney fits both of the above categories. It often will not go into effect until the person who grants the power of attorney becomes incapacitated. Therefore, a showing of incapacity must be made before the power of attorney will go into effect.
- An ordinary or general power of attorney is comprehensive. It gives the agent all the powers, rights, and responsibilities that the person granting POA has. A person can use an ordinary power of attorney if s/he is not incapacitated but needs help in some areas. An ordinary power of attorney usually ends with the death or incapacitation of the person granting POA.
- A limited power of attorney specifies the purposes for which the person’s agent may act on his/her behalf. For example, it may grant the agent the right to make financial decisions related to property, but not other financial decisions.
4Pursue legal guardianship if you cannot obtain power of attorney. If the person is already mentally incapacitated and did not grant power of attorney in a living will, it may be necessary to get conservatorship or adult guardianship. In most regards, the authority held by a guardian is similar to (but more limited than) those held by someone with power of attorney. A guardian is still accountable to the court, and must provide regular reports of transactions. To become a guardian of someone, a court must deem the principal to be “legally incompetent.” In other words, they are judged to be unable to meet their own basic needs. If you believe someone you known meets the criteria for incompetence, you may petition the court to be named guardian.
- The district court sitting in the county where the principal lives has jurisdiction over the case.
- Once you file the petition, the court will schedule a hearing. At the hearing, the proposed guardian must establish the incompetence of the proposed ward (the principal) and that no suitable alternatives to guardianship are feasible.
- Any interested party, including the proposed ward, may challenge the guardianship petition.
5Contact a trusts and estates attorney. Power of attorney documents are typically prepared as part of the broader estate planning process. You may need to work with a trusts and estates attorney to make sure that your power of attorney and estate plans are compatible.
- You can ask your friends and family for referrals. If you already have another attorney for other matters, s/he may be able to recommend a trusts and estates attorney.
- County and state bar associations usually offer free referral services. Contact your local bar association and ask them about trusts and estates attorneys.
Obtaining Power of Attorney
1Check your state’s requirements. Requirements for power of attorney are similar in most states, but some have special forms. Usually, the document granting power of attorney must identify the principal, identify the agent, and specify exactly what legal acts the agent is entitled to perform.
- Check whether or not your state has special forms for power of attorney. You can find the forms on the internet, including USlegalforms.com.
- If your situation is complicated and you’re unsure how to proceed, hire an attorney. An attorney can help you and your loved one carry out the proper requirements for granting power of attorney.
2Download or write a power of attorney form. In most states, power of attorney forms don’t have to be government-written legal documents. However, for the sake of precision and clarity, it’s a good idea to use a state-issued form as a template when available.
3Check your document for clarity. It must specifically name the principal, the agent (the person given power), and the type of powers granted. A power of attorney can provide broad powers or it can narrowly tailor the agent’s responsibility.
- Make sure the form stipulates whether the powers are “springing,” “durable,” or “springing durable.” These terms will clarify the moment at which power of attorney takes effect and how long it lasts. Again, durable power of attorney allows the agent to continue acting after the principal becomes incapacitated. If the principal wants to continue making decisions until a certain point, choose a springing power of attorney. For example, the power of attorney document could empower the agent when the principal turns 75 or has become incapacitated.
- Additionally, make sure that the principal and agent know the limits of power of attorney. If the power of attorney purports to transfer a power that cannot be transferred under the law, that part of the power of attorney is void. For instance, even if the principal and the agent agree, the agent cannot write or execute a will for the principal. Any such will is not valid.
- Alternate agents may also be named, in the event that the first agent is unable or unwilling to act on his or her authority.
4Gather witnesses. In some states it is necessary to have the signing of the document witnesses by one or two people. For instance, in Florida, a power of attorney document must be signed by two witnesses while in Utah, no witnesses are required. If necessary, make sure witnesses are present while the agent and the principal sign the document.
Protecting Your Power of Attorney Document
1Consider hiring an attorney to review the document. An attorney may notice legal issues that those without legal training would miss. Even if you do not hire an attorney to look over the document, make sure that you clearly and specifically identify the powers that are being granted to the agent, when those powers will take effect, and when (if ever) those powers will cease to have an effect.
- Specific details are helpful. Instead of saying that the agent “has power over the principal’s finances,” say that the agent “has the power to withdraw money and make payments from the principal’s three bank accounts: bank account X, bank account Y, and bank account Z.”
2Have the power of attorney document notarized. Some states require the agent and the principal to sign the power of attorney document in front of a notary. Even if your state does not require notarization, notarization eliminates any doubt regarding the validity of the principal’s signature. The notary must verify the identity of the principal before witnesses the signature.
Save the power of attorney document. A power of attorney is not filed at any governmental agency, but you must have it on hand to present it every time you use it. Keep it in a safe in your home or in a safety deposit box until the time comes when you need it.
What can I do if I question if someone was knew what he was doing when he signed power of attorney documents?
You can go to court and consider the signed participant irrelevant, hence overruling the signer’s consent.
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- Make sure that if you are selected that you have the time to perform the power of attorney on behalf of the principal.
- You are not allowed to charge for acting as power of attorney on behalf of someone else. The only charges you can make are on food, lodging, and travel for performing your duties.
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