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Do you need a lawyer to get a power of attorney?

Wondering whether you need a lawyer to get a power of attorney? Read on for everything you need to know if you have questions about creating a POA.

evident Editorial Team
published
June 15, 2023
Woman signing a power of attorney document

A power of attorney (POA) is a legal document that gives another person the authority to manage your financial and legal affairs, such as authorizing medical treatments, if you cannot do so yourself. It can be used in various circumstances, such as when you are away on vacation or if you become ill and cannot make decisions on your own behalf.

But when it comes to getting a power of attorney, do you need a lawyer? The short answer is no, though it may be worth consulting one, depending on the circumstances.

Key Takeaways

What is a Power of Attorney?

A power of attorney is a legal document that grants someone else the legal authority to act on your behalf. A power of attorney can be created for a specific purpose or can be used for a variety of tasks.

Depending on the type of power of attorney document you create, it can cover decisions related to:

  • healthcare
  • banking
  • investing
  • business affairs
  • and more

A POA is usually created as a way to give someone else the ability to make decisions for you if you become unable to do so yourself, such as if you suffered an injury and were declared incapacitated. It can also be used if you are simply away from home for an extended period and need someone else to handle matters on your behalf.

In both cases, the person you appoint to manage your affairs is called the agent or attorney-in-fact. (And note that this person does not need to have any legal background or experience despite being called an "attorney-in-fact.")

Types of Power of Attorney

There are several types of POA, and they can differ in terms of what authority they grant or when they take effect. (For info on when a power of attorney expires, check out our article on that topic).

The type of power of attorney you are contemplating can impact whether or not it makes sense to speak with a lawyer. The broader or more complicated the scope of decision-making power you are granting, the more important it can be to get things right.

Types of POA include:

  • General Power of Attorney: Gives the agent broad powers to handle your financial matters and legal affairs. This can include managing bank accounts, paying bills, buying or selling property or other real estate transactions, and more.
  • Limited Power of Attorney: Gives the attorney-in-fact authority to act in specified circumstances, such as selling a specific property, making healthcare decisions, making financial decisions (sometimes referred to as a "financial power of attorney"), and more.
  • Durable Power of Attorney: This type of POA remains in effect even if you become incapacitated. Without a durable power of attorney, a POA would become invalid in case of incapacity.
  • Medical Power of Attorney: A medical POA, also referred to as a healthcare POA, allows the agent to make medical decisions on your behalf if you cannot do so yourself.
  • Springing Power of Attorney: A springing POA becomes effective only when a specific event occurs, such as incapacitation or disability. (In this sense, the springing power of attorney relates more to when the POA takes effect than what powers the document grants).
Timeline of when a durable vs springing POA is valid
Example of when different POAs are valid

Creating a power of attorney

When creating a power of attorney document, it is important to make sure that the document is properly drafted and that the person you choose to be your attorney-in-fact is someone you trust. You can name more than one person as your agent, but doing so can have pros and cons (for instance, if the agents disagree on a course of action).

Your power of attorney document must also be signed and witnessed in accordance with the laws of your state. Many states require the signing to be notarized, so you will have to go to a notary public to execute the POA document.

Once the document is signed, it is a legally binding document and can be used to make decisions on your behalf.

It's important to note that a POA is only effective while you are alive (including on life support), and it will become invalid if you pass away.

Do I need a lawyer for a power of attorney?

Person signing a power of attorney document

While hiring an attorney to create a power of attorney is not required, it often makes sense.

An estate planning attorney can help ensure that the document is valid and legally binding and can provide advice about what type of POA is best for your situation (e.g. durable POA vs. non-durable POA).

There are certain situations where seeking legal counsel is highly recommended. Below are some examples of when you may want to consider hiring a lawyer for a POA.

Complex financial and legal situations

If you have a complex financial situation, such as owning valuable real property (i.e. real estate), an ownership interest in a business, or substantial investments, it is a good idea to hire a lawyer to help you draft a power of attorney. A lawyer can also help you navigate any legal complications that may arise in a real estate transaction or other issues.

Medical POA

If you are creating a medical POA, it is important to ensure that your wishes are clearly stated and that your POA is legally binding. A lawyer can help you understand the medical terminology and legal jargon used in a medical power of attorney and ensure that your document meets all the requirements of your state's laws.

Special needs planning

If you have a child or family member with special needs, planning for their future care is crucial. A lawyer can help you understand the legal options available and help you create a power of attorney that takes into account the unique needs of your loved one.

You have concerns about the attorney-in-fact's intentions or abilities

If you have any concerns about the person you appoint as attorney-in-fact, hiring a lawyer to help you draft a POA that includes safeguards to protect your assets and property may be a good idea. (That said, the best option is to select an agent you fully trust to act in your best interests).

The Cost of Hiring an Attorney to Assist With Your Power of Attorney

The cost of hiring an attorney to assist with getting a power of attorney varies depending on the complexity of the matter, the time involved, and where you live.

Generally speaking, hiring an estate planning attorney can cost anywhere from $100 - $500 per hour. (For instance, a typical estate planning or elder law attorney in Ohio might charge between $250 - $300 per hour, whereas an attorney in New York might charge between $350 - $400 per hour).

Some lawyers also offer flat fee arrangements as an alternative to hourly rates.

Tips for Finding the Right Lawyer for Your Power of Attorney

When looking for a lawyer to assist with obtaining a power of attorney, it is important to find one who is experienced in estate planning and familiar with drafting POAs.

You should also consider working with an attorney who is familiar with state laws regarding POAs, as these vary from state to state. For instance, Pennsylvania assumes that a power of attorney is a durable power of attorney under the relevant law.

You should also consider looking for an attorney who has experience working with clients in similar situations and who is willing to take the time to explain what's involved with obtaining a POA.

Can I do power of attorney myself?

Couple holding hands

Yes, creating a power of attorney by yourself is possible if you feel comfortable finding and selecting the correct form and observing all other formalities.

Many banks and other financial institutions offer forms that can be used to create a power of attorney. Using these forms will be less expensive than hiring an attorney, but will not provide the same level of protection or assurance that a professionally-drafted document would.

Additionally, a variety of websites offer templates for creating a power of attorney. These websites usually provide basic information about how to create a power of attorney and provide forms that you can download and fill out by hand.

However, these forms come with the same limitation: you will trade off some cost savings for the confidence that your power of attorney is executed correctly and legally enforceable as compared to hiring a lawyer.

How to get a power of attorney without a lawyer

Here is a step-by-step guide on how to draft a POA document without the assistance of a lawyer:

  • Step 1: Check the laws in your state. Each state has its own set of laws and requirements for POA documents. It's important to familiarize yourself with these laws before drafting your document.
  • Step 2: Choose the type of POA you need. As mentioned earlier, there are several types of POA, such as General, Durable, Medical, and Springing POA. Choose the one that best suits your needs.
  • Step 3: Gather all necessary information. POA documents require the names and addresses of the grantor (the person giving the POA) and the attorney-in-fact (the person receiving the POA), so you will need to gather all this information in advance.
  • Step 4: Download a POA form or template. There are many free POA forms and templates available online. Be sure to choose a form that is appropriate for the type of power of attorney you need and for the state where you reside.
  • Step 5: Fill out the form. Carefully read and fill out all the fields of the form, providing all the necessary information. Make sure to include the names and addresses of the grantor and attorney-in-fact, plus any specific instructions or limitations for the POA.
  • Step 6: Get the document notarized. In many states, a notary public must witness the signing of the document and certify that the grantor is signing the document voluntarily.
  • Step 7: Give a copy of the POA to the attorney-in-fact. It is important for the agent to have a copy of the POA in case they need to use it in the future.

The bottom line

So, do you need a lawyer to get a power of attorney? No, but it may still be worth speaking with a lawyer.

While it is possible to get a POA without the assistance of a lawyer, it often makes sense to consult a lawyer before drafting a POA document. This will ensure that your POA document is legally binding and meets all the requirements of your state's laws.

Whether you want to grant an agent authority for a limited period to handle some of your financial affairs or you want to provide a loved one with legal authorization to make healthcare decisions on your behalf, a legal professional can help you evaluate which type of POA is best for you and ensure that the document will be legally enforceable.

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