Powers of Attorney

What is a Power of Attorney?

A Power of Attorney is a document that voluntarily creates a relationship with another and gives them the right to act as if they were you. You may limit a power of attorney to a very specific transaction or you may grant full power to someone over all of your affairs. For example, a limited power might be to allow your agent "to sell my car and deposit the sale proceeds to my bank account" or "to write checks on my bank account to pay my utility bills." A "full" power would allow your agent to transact all your financial affairs for you.

What are some common uses of the Power of Attorney?

Some of the most common uses of a power of attorney follow:

  • Financial decisions (i.e., you may allow a person who is not on your checking account to withdraw money from your account);
  • Medical decisions (i.e., you may allow a person to make medical decisions for you);
  • Parental rights (i.e., you may delegate some or all of your rights as a parent to someone else for a period of up to six months). Note: This type of power of attorney may not work in all cases. For instance, schools generally require more than a power of attorney.

What is an Agent or Attorney in Fact?

When you create a Power of Attorney, you give another person to legally act for you under the provisions of the Power of Attorney. In legal terms, that person is called an agent or Attorney in Fact.

You should also be very careful when choosing your agent. It should be someone you know is honest and whom you trust to act in your best interests. Before you name someone as your agent, you should talk to that person about it and get his or her consent. The person you choose as your agent should know that she or he has a duty of trust and must always act in your best interests.

How do I create a Power of Attorney?

There are really only three requirements for a power of attorney to be legal:

  1. You must be able to understand what you are doing;
  2. It must be in writing; and
  3. It must be notarized.

Witnesses to the power of attorney are not required. But, because you should be very careful about what power you give someone else, you should consult an attorney about exactly what should be in the power of attorney and how it should be written.

Also, if the Power of Attorney includes the authority to transact business in connection with real property, the it should be filed with the County Recorder of the County where the property is located.

Once the document is signed and notarized, you should give the original signed Power of Attorney document to the person you chose as your agent so she or he knows the limits of the powers given and can prove that fact to others, such as your bank.

Does a Power of Attorney last forever?

No. You can set the lenth of time that the Power of Attorney is effective. For example, it could be as short as a few weeks while you are out of the country. You can also set a future date for it to become effective. For instance, you can make it so the Power of Attorney becomes effective when it is signed or at some future date or event, such as "only in the event of my disability." Unless stated otherwise, Powers of Attorney automatically end when you become incompetent so once your agent learns of your condition, she or he has no further right to act for you. To prevent your Power of Attorney from ending when you become incompetent, you must have a provision in the document saying that is your wish. This provision makes your Power of Attorney durable, meaning it will remain valid if you become mentally incapacitated. If you create that type of Power of Attorney, the document will also usually require that your disability be determined by two licensed physicians, one of whom regularly sees you. Finally, Powers of Attorney automatically end at your death. There is no way to extend a Power of Attorney beyond your death.

What if I Become Incompetent?

If you become incompetent, your Power of Attorney will automatically be revoked so once your agent learns of your condition, she or he has no further right to act for you, unless you specifically said you didn't want it to. This is called a "durable" power of attorney and it must be created while you are competent. You can make it so your Power of Attorney isn't effective until you become incompetent if you want. If you create that type of Power of Attorney, the document will also usually require that your disability be determined by two licensed physicians, one of whom regularly sees you.

Can I revoke my Power of Attorney?

You may revoke a power of attorney any time you want as long as you are competent. However, a power of attorney is automatically revoked when you pass away. In addition, it is automatically revoked when you become incompetent unless the power of attorney specifically states that it will continue if you become incompetent. Once you are incompetent, if the power of attorney continues, you cannot revoke it.

Revoking a power of attorney has the same requirement as creating a power of attorney. It must be in writing and notarized. In addition, the person who previously had the power must be notified that you are revoking that power. Finally, it should be filed in the county clerk office of any county where you have property that was covered by the power of attorney.

What is the difference between a Power of Attorney and a Guardianship or Conservatorship?

Like a power of attorney, a guardianship allows someone else to act as if they were you. Unlike a power of attorney, a guardianship cannot be created voluntarily. It is granted by a judge. A guardianship is similar to a parent/child relationship, except that a guardian is not held legally responsible for the acts of the other person and guardians do not have to use their own money to provide for the other. They are generally given when someone may no longer take care of themselves or a minor under their control. Guardianships may be granted to take care of adults and/or children. For more information about guardianship and/or conservatorship, click here.

My mother has Alzheimers. Can I get a Power of Attorney for her?

No. Your mother is the only one who can create the Power of Attorney and so if she has Alzeihmers, she probably would not be able to. However, you may seek a guardianship and/or conservatorship. For more information about guardianship and/or conservatorship, click here.

The information in this site is not intended as legal advice.
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