Understanding Power of Attorney

Apr 8, 2019 by Janet Nordlie 0 Comments

What Is a Power of Attorney Document?

A power of attorney document authorizes legal right to act on another’s behalf in regard to legal, financial, or medical matters. In this document, an “agent” is named as well as a “principal”. The agent refers to the person who has been granted authority from the principal. Generally, the principal will determine the amount of power given to the agent. This power of attorney document must be signed by the principal in order to be considered binding, and in many states, it requires notarization.

Types of Power of Attorney

The scope of a power of attorney can be limited, general, or temporary. A limited power of attorney, also called special power of attorney, restricts certain acts as outlined in the document. A general power of attorney allows the agent to make all business and legal decisions. A temporary power of attorney is constrained to certain time parameters. Time constraints on power of attorney can include a durable power of attorney and a springing power of attorney. In a durable power of attorney, an agent continues to act after the principal has become incapacitated. A springing power of attorney is written so that is specifies when the agent can begin to act.

Power of Attorney Rights and Limitations

The laws on power of attorney will vary by state, but there are certain rights and limitations associated with these documents. The power of attorney agent cannot perform acts that are contradictory to any regulations ruling the people and companies dealing with the agent. Aside from limitations outlined by the type of power of attorney, other general limitations include: not enabling an agent to cancel or change a will, allowing competent principals to revoke power of attorney at any time, and ensuring power of attorney ends at the death of the principal (and that there will be legal consequences if an agent is determined to have intentionally abused their power).

Does a Spouse Automatically Have Medical Power of Attorney?

Healthcare providers will sometimes honor the wishes of a spouse or other family members, but there are instances where providers will require an authorized decision-maker to make the final decisions on care.  It is best to have a Durable Power of Attorney for Healthcare in place to avoid issues that could be very stressful to deal with during an already difficult period when a spouse is incapacitated.

Can Someone Have More Than One Power of Attorney?

A power of attorney can name joint agents on one principal as well as name a successor in the event that the primary agent is either unable or unwilling to act.

Can a Power of Attorney Change Beneficiaries?

Yes, a general power of attorney can be drawn up to designate the ability to change beneficiaries, such as life insurance and retirement beneficiaries, but the agent has a duty to act in good faith.

Can a Power of Attorney Be Revoked?

In the case of a durable power of attorney, authorization can be revoked at any time if the principal is still mentally capable, but not after they are incapacitated.

Can Someone Change Their Power of Attorney?

At any point, a mentally capable person can change their power of attorney by revoking the previous power of attorney and creating a new one.

How to Get a Power of Attorney

Knowing when to get a power of attorney will depend on a variety of circumstances, but most likely, it will be initiated for the elderly when health concerns become more prevalent. First, a conversation about power of attorney will need to be initiated with the principal (those whose legal, financial, and/or medical decisions will be granted to another) and agent (those gaining authority over the principal’s legal, financial, and/or medical decisions).

In this conversation, discuss what types of power of attorney documents are available, the types of powers to be granted, and the general reasons for and outcomes of the power of attorney. Next, begin researching state-specific power of attorney requirements and choose the type of power of attorney that’s right for you. Each state will require different language requirements as well as signing specifications. You can either hire a lawyer to help draft up a power of attorney document or you can create your own, based on those state-specific requirements. After reviewing the documents, both parties will sign and receive copies in the presence of a witness and/or notary, if required.

Whether you are researching power of attorney for an elderly parent or for yourself, maintaining full disclosure and communication with regard to expectations and outcomes will be imperative. Find resources online as well as professional legal counsel near you to ensure that appropriate steps are being completed correctly and thoughtfully. At the end of the day, legal considerations for seniors and assigning a power of attorney should be viewed as a positive step as a contingency plan for loving family members to help manage affairs in times of need.

 

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Topics: Senior Legal

Written by Janet Nordlie