Power of Attorney

A power of attorney (P.O.A.) is a legal document signed before a notary public that allows a principal to designate an agent as their attorney-in-fact. In other words, a power of attorney form allows you to grant another person, such as a family member or loved one, the power to make legal decisions on your behalf. Because the attorney-in-fact is acting on behalf of the principal, he or she has fiduciary duties to act in the best interest of the principal.

Low-cost do-it-yourself (D.I.Y.) wills, living wills, and powers of attorney are possible in some simple cases and can be found on our companion site, FindLaw.com. Estate law varies from state to state, and estate planning situations can get complicated quickly. You may also want to consult with an estate planning attorney in your area for advice on your individual situation.

In most cases, people can choose anyone to act on their behalf, and the power of attorney designation can be canceled at any time by either party. A P.O.A. can contain a clause specifying when and under what conditions a limited P.O.A. will begin or end, and to what extent (e.g., real estate, medical, financial power of attorney) an attorney-in-fact is allowed to act in handling the affairs of their principal.

There are several different types of power of attorney documents:

• Medical Power of Attorney (Advance Health Care Directive or Living Will).
• Durable Power of Attorney (Durable P.O.A. or Enduring P.O.A.).
• General Power of Attorney.
• Limited Power of Attorney (Special Power of Attorney).
• Springing Power of Attorney.

Each of these estate planning documents have different legal requirements, making it important for people to understand what they mean and whether they are subject to revocation (cancellation) before signing off on any documents.

A general P.O.A. becomes active immediately after it is executed, but is extinguished when the principal is incapacitated. A durable or enduring power of attorney also takes effect upon signing, but can continue beyond the principal’s state of mental incapacity. A springing P.O.A. remains dormant after it is signed, but becomes triggered when certain conditions set by the principal come into fruition. A limited P.O.A. may become effective only at a specified time for a specified purpose. Similarly, a springing power of attorney is activated upon the occurrence of a specific event. In all cases, all powers of attorney are extinguished at the principal’s time of death.

Estate planning laws are different in every state. To make sure you get the best estate planning legal advice for your situation, talk to a local estate planning attorney who understands how to handle power of attorney legal services and estate planning in your area.

How Health Care Directives Differ

Advanced health care directives, also known as living wills, empower a trusted person to make medical decisions on your behalf and to communicate them to medical professionals or a health care facility. When you are incapacitated or unable to communicate your own decisions to your health care provider, the proxy or agent authority can make health care decisions on your behalf.

Depending on your state’s laws, a medical power of attorney may be referenced interchangeably with an advance health care directive or living will. For example, under California Probate Code Section 4701, state law recognizes advance healthcare directives as a form of P.O.A. On the other hand, Florida Code Section 765.201, et seq. Health Care Surrogate Act provides for health care directives in the context of life-prolonging medical procedures.

In some states, a medical power of attorney applies where the principal becomes incapacitated but continues to live, and a healthcare directive or living will applies only in the context of life-sustaining treatment, end-of-life care, and palliative care for terminal health conditions.

Durable Power of Attorney

A durable power of attorney is unique because it is a much more formal estate planning document.

Most of the time, a durable power of attorney gives your fiduciary agent broad powers to act on your behalf in case you become ill or suffer incapacity and can no longer make financial decisions and manage your own financial affairs or real estate transactions. This includes discussing financial matters on your behalf with financial institutions or managing your real property. For example, Texas Estates Code, EST § 752.051 provides a statutory durable power of attorney form suitable for various legal purposes, including the management of one’s finances, property, and taxes.

As it is sometimes impossible to know when this might occur, many people choose to put the power of attorney document in place before any sign of illness begins. Advance care planning documents are important for life decisions you may not be able to make after it is too late.

The major difference between a regular and an enduring (durable) power of attorney is language. In order for a durable power of attorney to have a valid legal status, it must explicitly state that it will go into effect when or if the subject becomes incapacitated in some way. Some states may require an accompanying document called a self-proving affidavit. Should you become incapacitated without a plan in place, probate courts may appoint a guardian or conservator to make important decisions on your behalf.

Which Estate Planning Documents Do You Need?

Everyone can benefit from estate planning, no matter the size of your estate. For example, one person might have a massive portfolio of valuable investments, and another might only have a modest bank account; yet, both of these individuals will benefit from power of attorney documents providing for the care of their assets if serious illness or incapacity arises.