A power of attorney gives another person legal authority to act on your behalf and can be a key piece of an estate plan. Here's what you need to know.
A power of attorney gives another person the legal authority to act on your behalf. When you (the principal) sign a POA, you give another person (known as the agent or “attorney-in-fact”) the authority to act on things like your property, finances, or health care decisions.
There are several kinds of POAs that give the agent various levels of control over your affairs. Power of attorney is an important part of estate planning, as almost everyone will need a POA at some point.
You might decide to set up a power of attorney for a variety of reasons. Many people establish a power of attorney so they can pass on the management of their affairs to someone else when they become elderly and no longer have the physical or mental capacity to manage them on their own behalf. (But note the distinction between a durable POA and a non-durable POA which we'll discuss in greater detail below).
If you become incapacitated without a POA, the court will appoint a guardian or conservator, and your family will have no control over this appointment. Principals must establish powers of attorney for themselves, meaning your family cannot establish a POA for you after you become incapacitated.
People might also set up POAs for convenience, such as with a special power of attorney which allows someone to represent you in the business field and make financial dealings or sell property in your name without you being present.
It’s important to note that wills and powers of attorney are not the same things. While both are related to estate planning, your will describes the distribution of property after you die. By contrast, a POA only governs decisions made while you’re still alive since POAs expire upon your death.
Anyone can establish a power of attorney – you can even do so on your own by downloading the necessary forms online. However, powers of attorney are created under state laws, and therefore the forms differ by state. Since there is no single standard form, make sure your forms fulfill your state’s requirements. Working with an estate planning attorney to make sure your forms are correct could prevent mistakes later down the road.
Your estate attorney will also help make sure you execute the documents according to your state regulations. For instance, some states require the documents to be notarized and others require several witnesses to sign the documents to verify your mental competency.
And state rules can change. For example, in 2021 New York updated the rules for enacting a power of attorney in NY.
The language of your POA is also critical because it dictates the amount of legal control another individual will have over you. In addition to ensuring your documents are in order, an estate planning lawyer will help ensure that the agent’s responsibilities are clearly outlined.
An agent’s power depends on the type of POA the principal chooses and the details they choose to include within their POA. The main substantive kinds of POAs are:
There are also different durational types of POA. That is, any of the above substantive types of POA can take the following forms:
Here's an example of the difference in the duration of a regular power of attorney, durable power of attorney, and springing power of attorney if an injury that leads to incapacitation occurs:
As you can see, the durable power of attorney takes effect immediately and remains in place after the injury, whereas the regular and springing power of attorney are only effective on either side of the point of incapacitation.
A power of attorney allows another person to act on the principal's behalf with full legal authority. The attorney-in-fact can make decisions on the principal's account regarding their property, financial affairs, or health care.
The limits of a power of attorney depend on the type of POA in effect. However, there are some things the agent never has authority over.
As previously mentioned, if you give someone the authority to manage your retirement account under a special POA, that’s where their authority ends. They won’t have control over anything other than that account. This is also true of a healthcare POA or financial POA, as such a power of attorney is limited in scope to the certain circumstances covered by the power of attorney document.
Meanwhile, even if you have a general POA in which an agent has broad powers over all matters, the attorney-in-fact will still be unable to alter your will, make decisions for you after your death, transfer the power of attorney to another individual, and vote on your behalf in a public election.
There are four main steps to enacting a POA:
The first step in creating a power of attorney is considering what type of POA fits your needs. Whether you are interested in granting someone authority to handle financial matters, health care decisions, or both will impact which type of power of attorney is right for you.
Next, you'll need to choose the person to name as your attorney-in-fact. You can also name more than one person to fill this role, though there potential pros and cons to doing so.
We'll discuss the considerations to be aware of below, but whether you select a family member or your personal lawyer to be your agent, it's important to choose carefully.
Power of attorney forms are often available online, but they can vary by state. It's important to make sure you use the correct POA document and fill it out care
State law dictates what formalities must be observed when creating a power of attorney document. The requirements can also vary depending on what type of power of attorney you are executing. (For instance, Ohio requires POAs granting authority related to real property to be filed in the county where the property is located).
There are only two requirements to be an agent:
Family members are commonly selected as agents. Professionals such as your lawyer or accountant can also be your agent, though they may charge fees.
That being said, it’s critical that you choose someone who you trust to carry out your wishes. The health care decisions your agent makes could be a matter of life and death, and the financial decisions they make could leave you bankrupt if mismanaged.
Additionally, agents are only held legally accountable for intentional misconduct – they will not be held responsible for doing something wrong unknowingly. This makes it even more crucial that you pick an agent you trust.
While many people select a close family member, naming a spouse who’s around the same age as you sometimes defeats the purpose, as your spouse will likely also need a POA to manage their end-of-life affairs at around the same time.
Trustworthy children are often the best choice for POA agents. While you can name multiple agents and have your children share the responsibility, this can sometimes make things difficult. For instance, having more than one agent (whether they're your children or not) gets complicated if they're unable to make decisions at the same time or agree on every choice.
Additionally, risk protection measures can be written into your agreement to prevent mismanagement. You can require that your attorney-in-fact reports all actions to an outside party (like a family attorney or accountant), or you can name two agents and require they agree on major transactions (like the sale of property) before they are made.
Estate planning lawyers can draft these kinds of safeguards into your agreement in accordance with your state’s laws.
We’ve covered several examples in this article, but the most common are a general power of attorney and healthcare power of attorney.
For example, you might include in your estate planning documents a general power of attorney so your agent can manage your bank accounts, sell your assets, manage their government benefits like Social Security, and make health care decisions.
Or you might assign a power of attorney for healthcare only, like if you are about to undergo a surgery and be put under general anesthesia but want to make sure someone can make medical decisions for you if necessary. (A related, but different, document you may want to put in place is a living will).
When acting as an attorney-in-fact, it’s essential to sign documents in a way that makes it clear you are signing the document on behalf of the principal under the authority of their power of authority. Sometimes bank forms and legal documents will require a particular signature format.
For example, if Jane Smith has power of attorney for John Smith, she could sign two ways:
It’s unlikely that you’ll need to sign an entirely new power of attorney document if you move states, as powers of attorney are generally valid across state lines. That being said, it might be worthwhile to update your power of attorney if you move in order to ensure your documents are in accordance with the nuances of your new state’s laws.
Moving out of state may also mean your overall circumstances have changed. If so, it’s important those changes are reflected in all of your estate planning documents.
Powers of attorney only expire when the principal dies or becomes incapacitated, unless the principal includes an expiration date for the power of attorney ahead of time. Expiration dates are typically included for temporary POAs. (And remember, durable POAs do not expire if the principal becomes incapacitated).
Powers of attorney can also be structured with a condition that the POA will expire once a particular event occurs. For example, a healthcare or medical POA may contain a condition that the POA will expire if the principal regains the ability to make their own medical decisions.
If your power of attorney doesn’t include an expiration date, it’s a good idea to revisit your POA every three to five years (or every time you experience a life-changing event) to ensure your documents accurately reflect your situation.
Additionally, an agent can resign at any time by giving the principal written notice. Many POAs list a successor agent, and a lawyer would probably recommend naming one so that your power of attorney doesn’t expire if the agent resigns. But, if the agent resigns and you have not listed a successor agent, the power of attorney must end because there is no one else authorized to carry it out.
Agents are legally required to act in the best interest of the principal. If family members or other individuals feel that the agent is acting improperly (including behavior that’s grossly negligent or abusive toward the principal), they can file a court petition challenging the agent.
If the court agrees that the agent is not acting in the principal’s best interest, it can revoke the power of attorney and appoint a new guardian in the agent’s place.
So who can override a power of attorney? The only person who can override a power of attorney other than the judge is the principal, so long as they’re mentally competent.
So, what is a power of attorney? And why are they important?
All in all, establishing a power of attorney is critical to ensure your affairs are taken care of when you’re no longer able to take care of them yourself.
It is possible to execute a power of attorney without an estate lawyer. But with so much on the line and the laws that vary by state, it is often worthwhile to speak with a lawyer. Your estate planning attorney can help determine which powers should be included in your POA, who your attorney-in-fact should be, and help ensure your power of attorney document meets the requirements for your state.
So reach out to some estate planning attorneys, ask the right questions, and see if it might be beneficial to hire one and ensure your critical estate planning documents are in order.