Despite the name, a power of attorney usually doesn't have anything to do with a lawyer. It is a legal document that gives another person the authority to act on your behalf. There are different types of power of attorney documents, and can be tailored for an individual's specific needs, with an open or limited timeframe. Before you decide whether you need a power of attorney, it is important to understand the scope, limits, benefits, and drawbacks of each type.
In a legal document, the person authorizing the power of attorney, called the “principal,” authorizes the designated “agent” or “attorney-in-fact” to act on their behalf. The agent named in a has to be an adult over the age of 18, and is supposed to act in the best interests of the principal. The principal has to be of sound mind at the time they create a power of attorney for it to be legally valid. The document has to be entered into willingly, as a free and voluntary act, without constraint or undue influence.
The most basic form is the general power of attorney. This gives another individual broad authority to act on your behalf. After granting this power, the agent has the authority to handle your personal finances, personal property, real estate, and engage in certain business transactions on your behalf. Without a limitation as to the scope of the power of attorney, it will generally remain in place, until it is cancelled or revoked.
A durable power of attorney has no specified end date, and will only end on the death of the principal, or when the principal revokes the power. If the principal becomes incapacitated or disabled, then the agent will continue to act in their capacity as attorney-in-fact despite the incapacity or expiration date.
The special power of attorney is more limited than the general power of attorney. It can be written up to apply to a specific kind of authority, and can be granted for a limited length of time. This could be for a single business transaction, or grant power of attorney while the principal is out of the country for a specified amount of time.
In some cases, a parent may need to grant another person power of attorney over their child or children. This may be sought for a time when a parent is going on an active-duty military deployment, if they are going to be incapacitated for medical treatment, or any other reason they may be unable to temporarily be in charge of their children. Parental powers of attorney are limited to a 6 month duration, except in the case of active military personnel, who may grant the power for up to a year.
A durable health care or mental health power of attorney is used when an individual wants to empower another person to make future health care decisions. If illness, a health problem or accident renders a person unable to make their own decisions regarding treatment and health care, having someone with a durable health care power of attorney can ensure that their wishes are carried out even if they are unable to communicate.
This document is similar to a living will, except that a living will is generally limited to end-of-life care. It can specifically address the desire not to be kept alive in the case of a terminal illness, brain death or a prolonged coma. A health care power of attorney gives the agent authority over any health care decisions, not just end-of-life care. Some people have only a durable health care power of attorney, or a living will, and some people have both. It is important to speak with your attorney about these important decisions so that you can be confident that your interests will be protected in any situation.
Before you designate someone as your health care agent through a durable power of attorney, it is important to talk to them about your health care wishes. It can be a friend, family member, or anyone that you trust to faithfully act on your behalf in the event you become incapacitated or unable to communicate.
Like other powers of attorney, the principal has to be of sound mind at the time they sign the document. If they become incapacitated before entering into thisagreement, it may be too late. This is a reason why individuals should have these important conversations about mental and health care with family, your doctor, clergy and attorney.
A principal may make specific designations in their durable health care power of attorney document, including what they want, what decisions they want their agent to make, and which they do not want to authorize. It may also spell out specific limitations on what medical care to refuse, and what health care facilities to approve or deny for admittance. The document may also specify wishes regarding organ donation, autopsy, a do not resuscitate directive (DNR), funeral and burial disposition, and a living will.
Making provisions regarding mental health is also becoming more important as the public and medical professionals gain a greater awareness of mental health. Granting this power can enable a specified agent to make mental health care decisions for an individual if they become incapable of making mental health care decisions due to mental or physical illness, injury, disability or incapacity. The agent can be authorized to make decisions about mental health treatment, treatment settings, and medication administration.
A power of attorney may be revoked at any time by the principal, for any reason, with or without cause. It may also expire on a specific date or after an event if the document specifies such a termination. However, if the principal entered into a general durable power of attorney, the agent may continue to act as the attorney-in-fact even after the expiration date, if the principal becomes incapacitated.
At West, Elsberry, Longenbaugh and Zickerman, our family law attorneys are here to provide our clients with everything they need to create a power of attorney for any situation. We will advise you of all your options, and create the necessary legal documents. Our team of lawyers are committed to addressing the individual needs of each of our clients and can assist you with all aspects of power of attorney planning.