A power of attorney is a legal instrument that grants another person the authority to act as your legal representative, and to make binding legal and financial decisions on your behalf. While it is not particularly difficult to find power of attorney forms on the Internet, there is usually little or no accompanying explanation of what a power of attorney is, when you need one, or what type to choose.
Given that the power of attorney can grant considerable power to a third party to act on your behalf and sign your name to legal contracts, you should give careful consideration to the person to whom you choose to grant those powers, and whether any limits should be imposed in the time the power of attorney will last, or in its scope.
At a basic level, there are two types of powers of attorney.
General Power of Attorney - A general power of attorney is unlimited in scope and duration, and permits the named individual to act as your legal representative in relation to financial matters until such time as it is revoked.
Specific Power of Attorney - A specific or limited power of attorney imposes limits upon the named representative, and may restrict the scope of that person's powers to a single type of conduct or a single transaction. For example, the person could be granted the power to engage in financial transactions from a specific checking account, or to sign the closing documents for a specific real estate transaction.
Either type of power of attorney may be limited in its duration. That is, the document can specify a date or event after which the power of attorney will no longer be valid. Ordinarily, power of attorney forms do not have to be registered with the state. However, if a power of attorney grants somebody the right to engage in transactions relating to real estate, it may be necessary to record the form in order for it to be effective.
What is a Durable Power of Attorney
Most people who engage in estate planning in anticipation of possible disability obtain both a medical power of attorney and a durable power of attorney, a document that enables a trusted loved one to oversee their finances while they are incapacitated. In the event of a longer-term disability, having a duly authorized legal representative who can manage your bank accounts, process any income or insurance proceeds, and pay your bills, will almost always be necessary.
As with the medical power of attorney, if you neglect to plan in advance it is likely that a court will have to appoint somebody to represent your interests. This person, generally called a conservator, may not be the person you would have chosen, and may in fact be a private individual who works at a significant hourly fee, paid out of your estate. Once again, it makes sense to plan in advance.
When executing a power of attorney, you may choose to appoint more than one person to act on your behalf.
You may require that all persons appointed as your agents jointly sign any instrument or document in order for it to be binding upon you; or
You may permit each agent to act individually on your behalf.
Due to the difficulties that can arise from conflict between representatives or from obtaining multiple signatures, under most circumstances lawyers will recommend appointing a single representative. For a power of attorney with a longer duration, or for a durable power of attorney, it makes sense to designate an alternative representative (or a series of successors), who will be empowered to act in the event that the first person you named dies, becomes disabled, or no longer wants to act as your representative.
A power of attorney may be made effective based upon your specific needs. A power of attorney may be made effective:
At the time it is signed;
At a future date described within the document,
Upon the occurrence of a specific future event; or
Upon the occurrence of a contingency (such as your becoming disabled).
Unless a power of attorney includes langage that delays its becoming effective, or that causes it to become effective upon the occurrence of a future contingent event, the power of attorney becomes effective upon execution.
A power of attorney must be executed in a manner consistent with the laws in which execution occurs. Some states allow for a power of attorney to become effective when signed by the grantor, but others may require that the power of attorney be notarized, witnessed, or both.
Even when not required, taking the additional steps of having your power of attorney signed and notarized can help ensure that other jurisdictions will recognize its validity, and may reduce difficulties that the agent may encounter when presenting the power of attorney to individuals or organizations that are accustomed to receiving powers of attorney that have been witnessed or notarized, particularly in jurisdictions where those additional steps are required. Also, if a challenge is later made to your mental competence at the time you executed the power of attorney, your witnesses may be able to help refute that allegation.
The greatest need for a power of attorney -- the need most people have and many neglect -- is the healthcare proxy, also known as a medical power of attorney, a document that is created in anticipation of a medical emergency or disability. A medical power of attorney allows you to choose in advance who will represent your interests in the event that you become incapacitated due to an illness, accident, or other disorder.
When you create a medical power of attorney, you may impose upon your agent any restrictions that you choose. You may make clear, for example, that the person is not authorized to override your living will, an instrument that limits the right of doctors and hospitals to resuscitate you or to utilize invasive life support to keep you alive. Conversely, you can instruct your agent to authorize any and all life-extending care that your doctors are willing to provide. Any restriction you place in your healthcare proxy is a binding restriction upon the authority of your agent.
A power of attorney issued for the purpose of managing your assets in the event of disability will normally be unlimited in its duration. That is, a healthcare proxy is normally a durable power of attorney. Many organizations are reluctant to accept or rely upon powers of attorney that expire after a specific date, and some will refuse to accept them. If you are interested in limiting the duration of a power of attorney that takes effect in the event of disability, it makes sense to check with an attorney in your state to see what effect such a limit will have.
You may choose to explicitly limit the authority granted by your power of attorney, such that your power of attorney expressly recognizes your right to participate in medical and financial decisions to the extent that you are able.
What Happens if You Don't Have a Healthcare Proxy
If you do not have a medical power of attorney, in the event of incapacity your loved ones may be forced to seek a court order to appoint a person, usually called a guardian, who will be authorized to oversee your medical care, where you receive your care, and to enforce your wishes in relation to your care.
If you are unable to express your wishes to a court, the court may not appoint the person you would have preferred to advocate for your healthcare needs, and may not be willing or able to accept the representations of your loved ones as to your stated preferences for your care and treatment. Although it can be uncomfortable to address the prospect of serious health issues and end-of-life care with your loved ones, it is better to do so in advance of a crisis rather than forcing them to go through a court process at what will already be an extremely difficult time.
Healthcare Proxy vs. Living Will
A living will is a form of healthcare proxy, that specifically addresses your wishes for your end-of-life care. The instructions given in a living will can be to avoid certain unwanted life-extending care, or conversely can be to request that all reasonable measures be taken to extend your life.
The primary distinction between a healthcare proxy and a living will is that a healthcare proxy will broadly address authorizaiton for and provision of all medical care following disability, while a living will focuses on end-of-life care. It is possible for a healthcare proxy to include all of the provisions that might otherwise be included in a living will, such that only the one document is needed. However, some people prefer to have a separately executed living will that can more easily be shown to healthcare providers or included in a medical chart.
As long as you remain competent to manage your own legal affairs, you may terminate any power of attorney that you have previously executed. To the extent possible, you should collect and destroy the original powers of attorney and any copies, so as to avoid confusion or misrepresentation at a later date.
Free Power of Attorney Forms:
We offer the following example power of attorney forms:
Additional Sources of Forms:
Additional options for executing a healthcare proxy and durable power of attorney include:
Self-Help: You may obtain power of attorney forms from self-help websites and books, often for free. You will need to decide which forms will suit your purposes, edit them, and properly execute the forms;
Estate Planning Lawyers: Most attorneys who create a general estate plan will help you execute powers of attorney as a part of that plan;
Statutory Forms: Many states have created statutory power of attorney forms that are presumptively valid. When that is the case, it is normally possible to obtain the statutory form from the state, whether as a printed document or as a downloadable file that may be filled or completed on your computer;
Hospitals: If you do not want to utilize an attorney to draft an estate plan and are content to use a prepared, standard form, you can almost always obtain free power of attorney forms from a hospital. Most hospitals offer standard power of attorney forms, and may even provide notary services to assist with their execution, because it can save them a great deal of difficulty if people issue these authorizations when they are healthy and competent, as opposed to requiring one of their administrators to guide family members through the process of petitioning a court for the appointment of a guardian or conservator, potentially delaying important medical decisions and treatment.
When using a power of attorney form, keep in mind that laws are different in each U.S. state, and a standard form that is designed for a specific state may contain or omit language or content that renders it inappropriate for your state of residence.
If valid when executed, your power of attorney will normally be recognized by other states, but if you do not execute a power of attorney that is valid in your state of residence it may be unenforceable in any state.