A power of attorney is a document that confers power on someone to act for another person in certain circumstances. In a power of attorney, one person (the principal) names someone to act as his or her “agent” (also called an “attorney-in-fact”). The attorney-in-fact steps into the shoes of the principal, and can make legally binding decisions for the him or her. Powers of attorney can grant broad powers or limit the attorney-in-fact to particular situations. There are many options and variables, as well as different types of powers of attorney and legal directives. If you are interested in drafting a power of attorney, you should contact an estate planning lawyer to explain the pros and cons to you.
Durable Power of Attorney
A durable power of attorney contains special provisions that allow the power to continue in effect if the principal becomes incapacitated or mentally incompetent. A person can sign a durable power of attorney to prepare for the possibility that they may become unable to manage their own affairs. In this case, the power of attorney would contain a provision that it would not go into effect unless a certain event occurred, such as a doctor certifying that the person making the power of attorney was mentally incapacitated. A durable power of attorney can be used as an alternative to guardianship in some states, provided the principal executed the document before losing capacity.
Health Care Power of Attorney
A health care power of attorney allows a the principal to name someone to have the authority to make health care decisions on their behalf if they are unconscious, mentally incompetent, or otherwise unable to make such decisions. In many states, a health care power of attorney also allows a person to express their wishes regarding whether they desire to receive life-sustaining procedures if they become permanently comatose or terminally ill. Even with a health care power of attorney, the preferences listed should be discussed fully with the attorney-in-fact.
Financial or Property Power of Attorney
A financial or property power of attorney is sometimes known as a general durable power of attorney. The agent’s authority depends on the specific powers the principal conveys to the agent. The principal can delegate the authority to manage his or her finances, buy or sell property, file tax returns, or do a number of other actions on his or her behalf. However, there are a few powers that the principal may not delegate. For example, the agent cannot prepare a will, vote, or seek a divorce for the principal.
State Laws Vary Significantly
Each state has its own laws governing powers of attorney. As a result, the names of powers of attorneys and other legal directives are different from state to state. All states have some provisions for powers of attorneys and legal directives.
If a person does not have a power of attorney and become unable to manage their personal or business affairs, it may become necessary for a court to appoint one or more people to act on their behalf. People appointed in this manner are referred to as guardians, conservators, or committees, depending upon each state’s law. If a court proceeding is needed, than a person may not have the ability to choose the person who will act for them.
In addition to various types of powers of attorney, other documents, such as a living will, allow a person to provide advance directives concerning their health care. Comprehensive estate planning always includes documents that are geared to protecting an individual’s interests during their lifetime, as well as providing for their wishes to be carried out upon their death. If you have questions about powers of attorney or need to have estate planning documents drafted, contact an experienced estate planning attorney to ensure that your unique estate planning needs are met.
DISCLAIMER: This site and any information contained herein in intended for informational purposes only and should not be construes as legal advice. Seek competent legal counsel for advice on any legal matter.
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