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A power of attorney (POA) is a legal authorization that gives an agent or trustee the authority to act on behalf of a person known as the principal. An agent may be given broad or limited authority to make decisions about the principal’s property, finances, investments, or health care.
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A POA can be financial or healthcare related. Both give the trustee general or limited powers.
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A power of attorney is a legal document that binds an agent or principal and the principal. It is used when the director is temporarily or permanently ill or disabled or unable to sign the necessary documents. Both parties must sign the document and usually it must be witnessed by a third party.
Most POA documents authorize an agent to represent the principal in all financial and property matters as long as the principal is of sound mind. If the principal cannot make decisions for himself, the contract will automatically terminate.
A power of attorney can be terminated for many reasons, such as when the principal revokes the contract or dies, a court declares the power of attorney invalid, or when the attorney can no longer fulfill the responsibilities specified in the contract. For married couples, the authority can become invalid if the principal and attorney divorce.
A person who wants a power of attorney to remain in effect after their health deteriorates should sign a durable power of attorney (DPOA). The provisions remain in force even if the person they represent becomes mentally or physically disabled, but they do not survive the death of the principal. The power of attorney will also be void if it is not designated as a durable power of attorney and the principal becomes mentally incapacitated.
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There are many good reasons to have a power of attorney in place, as it ensures that someone will look after your financial affairs if you become incapacitated. But signing a power of attorney that gives broad powers to an agent is a lot like signing a blank check.
A durable power of attorney becomes effective when the document is signed and continues if the principal becomes incapacitated. A temporary power of attorney becomes effective only when the principal becomes incapacitated. A power of attorney can also be limited to medical matters, allowing the agent to make important decisions on behalf of an incapacitated person.
If the principal wants the agent to have the authority to make health care decisions for him, the principal can sign a durable health care POA (HCPOA). This document is also called a health care power of attorney. It outlines the principal’s agreement to grant POA privileges should the agent develop an unfortunate medical condition. The POA becomes effective when the principal is no longer able to make health-related decisions for himself.
A financial POA allows an agent to manage the principal’s business and financial affairs when the principal is unable to understand or make decisions, such as signing checks, filing tax returns, depositing Social Security checks, and managing investment accounts.
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The agent must make every effort to fulfill the wishes of the principal, at least within the scope of the agent’s responsibilities under the contract. A financial POA can give the agent broad authority over the principal’s bank account, including the ability to make deposits and withdrawals, sign checks, and designate or change beneficiaries.
This POA allows the agent to act on behalf of the principal in all matters permitted by state law. An agent under such an agreement may be authorized to handle bank accounts, sign checks, sell property, manage assets and file principal charges.
A limited power of attorney gives an agent the authority to act on behalf of the principal in certain matters or events.
It may specify that the agent is only allowed to manage the principal’s retirement accounts. Such a POA may be valid for a specific period. If the principal will live abroad for a period of time, the authorization may only be valid for two years.
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Even if the principal becomes mentally incapacitated, a durable POA (DPOA) still provides control over certain legal, property or financial matters expressly provided for in the agreement. A DPOA can pay medical bills on behalf of the principal, but a durable agent cannot make decisions related to the principal’s health, such as taking him off life support.
The conditions under which a durable POA becomes effective are set out in a document called a “temporary” power of attorney. The impending POA defines the type of events or degree of incapacity that should occur before the DPOA becomes effective.
A power of attorney can remain dormant until an adverse health event activates it as a DPOA. The power of attorney should be drafted very carefully to avoid any problems in identifying exactly when and if a triggering event occurs.
The person named as an agent in a power of attorney is not necessarily a trustee. This person could be a trusted family member, friend or acquaintance.
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You can purchase or download a POA template, but make sure it’s appropriate for your state, as requirements may vary. Although all states accept some version of a durable power of attorney, there is no standard POA form in all 50 states.
Some key powers cannot be delegated, including the right to make, amend or revoke a will or to enter into a marriage in most states, although a few states allow this. You cannot delegate voting rights, but a guardian can request a vote on behalf of the delegate.
Some areas of the country accept oral POA funding, but oral teaching is not a reliable substitute for paper text describing the terms. Writing clearly will help avoid arguments and confusion later at critical times.
Decide what authority you want to grant and prepare a POA that specifically addresses that desire. The POA must also meet your state’s requirements. Search online or ask a local estate planning professional to help you find the forms accepted by the courts in the state where you live. The best option is to seek help from a lawyer.
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A POA can be as broad or as limited as the principal wishes, but even if the principal grants an agent a general POA, each power granted must be clear. The principal cannot grant general, non-specific powers such as “I delegate all matters concerning my life to others.”
In most states, a POA terminates if the principal becomes incapacitated. If this happens, the only way for an agent to maintain its authority is to note its persistence in the POA. The designation causes it to continue for the lifetime of the principal, unless revoked by the principal.
In most states, the power of attorney must be legalized. It may be easier to get a lawyer if the document has a notary’s seal and signature on it, even in states that don’t require it.
Some states require certain types of POAs to be filed with a court or government office before they become effective, so check the rules where you live. Ohio requires that any POA used to grant custody to a grandparent of a child must be filed with a juvenile court. It also requires that the POA transferring real estate be registered by the county in which the property is located.
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Not all powers of attorney need to be formally recorded or filed, but it is standard practice for many estate planners and individuals who wish to establish a record of the document’s existence. To be safe, register with your state or county.
You can begin the process of establishing a power of attorney by finding an attorney in your state who specializes in family or probate law. If attorney fees are more than you can afford, there is a legal services office staffed by a licensed attorney in almost every area of the United States. Visit the legal services firm’s website and use the “Get Legal Help” search function. Eligible customers will receive free support at no cost.
A POA confers extraordinary ownership authority and responsibility. For medical POAs, this is a matter of life and death. If you end up with a persistent POA that is mishandled or abused, you could face financial deprivation or bankruptcy. Please choose your agent carefully to ensure that your wishes are met as best as possible.
It is essential that you appoint someone as your attorney who is both trustworthy and capable. Any mistakes can be difficult to correct and there can be a danger of self-dealing, depending on the degree of authority you delegate. The agent may have the authority to access your bank account, give you gifts and transfer your money
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