A power of attorney is a legal document where you give someone (referred to as the agent) the authority to act for you. Unfortunately, people often misunderstand their power of attorney. The following are ten key concepts (four definitions and six practical effects) that often come up when someone is either creating or using a power of attorney:
General Power of Attorney
A general power of attorney is comprehensive. It is often used to pay bills, complete a real estate transaction and handle other day-to-day business or financial activities.
Limited Power of Attorney
This is a power of attorney for a limited purpose. For example, you leave town for three weeks, and you won't be present to attend a real estate closing. However, you may give someone a limited power of attorney to handle anything related to only that transaction. For example, when you buy a new car, many people sign a temporary and limited power of attorney to the dealership to represent you at the DMV to get your license plates for your new vehicle.
Durable Power of Attorney
This power of attorney remains effective after you become incapacitated, which is, quite frankly, the reason most people create a power of attorney. Of course, each state has different rules on how 'incapacity' is determined, but in many cases, it's a written statement by their physician. And, if you wish, your durable power of attorney can be revoked if you regain your full capacity.
Springing Power of Attorney
This power of attorney has no legal effect until it "springs" into effect. A springing power of attorney becomes effective, typically, when the person who created the power of attorney becomes incapacitated. In a springing power of attorney, it is essential to define the standard for determining incapacity.
Can The Agent Clean Out My Bank Account?
If you give someone power of attorney, they will likely be able to go to your bank and withdraw your funds. However, they have to take actions that are only in your best interest. They would be stealing your money if they went to your bank and withdrew funds and spent those funds on themselves.
Does Certain Language Need to Be in the Power of Attorney?
If you expect the person you appoint to be able to do things like make donations, deal with a trust or probate on your behalf, buy, sell, or lease things on your behalf, or make your health care decisions, then the power to do those things, and other things, should be expressly granted in the language of the power of attorney document.
Can I Appoint More Than One Person?
You can appoint more than one person to act for you but do so with caution. Many financial institutions and other third parties do not like to be forced to work with two or more people, together, on a power of attorney. If you must name more than one, consider appointing them to act "jointly or separately."
Must Third-Parties Honor Every Power of Attorney?
No, a third party typically cannot be forced to honor a power of attorney that is presented to them. If there is something that they do not like about it (too old for their liking, not the correct wording, etc.), they may not honor it.
Do Powers of Attorney Get Recorded?
Initially, when signed, most powers of attorney do not get recorded at the courthouse. However, when it is time to use a power of attorney, some third parties may require that the power of attorney be recorded, and that the courthouse produce certified copies.
Is My Power of Attorney Effective After I Die?
No. Your power of attorney is no longer effective after you die. If assets in your name must be transacted after your death, the court will confirm your executor or appoint your administrator to deal with matters after your death.
1. Take care of this and all other components of your estate planning legal program while you are well; and
2. Make sure you give power of attorney to someone you trust, is responsible, and someone you know that will act solely in your best interest and not their best interest.