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Power
of Attorney
What is a Power of Attorney?
Powers of Attorney are governed by the law of "agency",
a branch of common law concerned with the delegation
of power from one person, generally called the "principal",
to another, called an "attorney-at-fact" or "agent".
When a person becomes incapacitated, the government
or the court often steps in and appoints someone to
represent and make legal decisions that the person would
have to take. One of the wayss to avoid government or
court intervention, and the appointment of a stranger
to act as your guardian, is to use a Power of Attorney.
A Power of Attorney is a written document stating that
one person gives to another the full power and authority
to represent him or her. It must be signed by both the
attorney and the principal, witnessed by two people
and notarized.
What is a Durable Power
of Attorney?
A durable power of attorney is a form of agency. The
person who gives the power is the principal, and the
person who receives the power is the "attorney-in-fact"
or "agent". "Durable" in this context means that the
agent`s power will survive the principal`s incapacity
or disability. As a result, a Durable Power of Attorney
can be used as an alternative to guardianship in some
states under certain circumstances, provided the principal
executed the document before losing capacity. There
are two types of Durable Power of Attorney: Financial
Durable Power of Attorney and Healthcare Power of Attorney.
The difference between the two is the authority granted
to the agent, as described below: The Financial Durable
Power of Attorney is also know as a General Durable
Power of Attorney. The agent`s authority to act for
the principal under a Financial Durable Power of Attorney
is based on the powers that the principal gives to the
agent. Whether broad, general powers or limited, the
specific powers given to the agent are completely determined
by the principal. Among other things, the principal
may delegate to the agent in the Financial Durable Power
of Attorney the authority to make deposits and withdrawals
from his/her checking account, to file his/her tax returns,
and to sell his/her home. However, there are a few powers
that the principal may not delegate. For example, the
agent cannot prepare a Will, vote, or seek a divorce
on the principal`s behalf. If the agent has a financial
interest in the subject matter of the power of attorney,
the power is generally irrevocable. Most senior citizens
who execute Durable Powers of Attorney are getting assistance
with their day to day personal affairs and their agents
do not have an ownership interest in the senior`s property
which would preclude revocation. In addition, revocation
can be by implication, in addition to, destruction of
the document or express revocation by the principal.
A Healthcare Power of Attorney specifically grants
authority to the agent to make decisions about and relating
to medical treatment. For example, the agent make consent
to treatment, refuse to consent to treatment, or withdraw
consent to treatment. In addition to these decisions
directly about medical treatment, the agent may make
all arrangements at any hospital or nursing care facility,
employ or discharge care personnel, request, receive,
and review any information about the personal affairs
or physical or mental health of the principal.
In preparing a Financial or Healthcare Durable Power
of Attorney, the principal must sign the document in
the presence of two qualified witnesses, and it must
be notarized. As laws vary from state to state, it would
be in your best interest to consult an Estate Planning
attorney in your area if you want more information about
Powers of Attorneys.
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