Many & LoCoco Legal Blog

Friday, October 12, 2018

The Basics of Powers of Attorney

A power of attorney is an estate planning document that has a variety of uses. There are several types of these documents available, and each one performs a slightly different function. One or more of these plans may be a good idea to include as part of your estate plan.


What is a Power of Attorney?

A power of attorney gives another person permission and authority to make decisions regarding various aspects of your life if you can’t make those decisions yourself or if you just want to hand over control to a friend or loved one for any other reason.

A power of attorney gives someone else the ability to make decisions for you. You are essentially authorizing this other person to act on your behalf.

You must complete a document to give this power to someone else. This document needs to be notarized and witnessed. 

Types of Powers of Attorney

Several kinds of powers of attorney may be useful for your estate plan. These often overlap in many circumstances.

  • Durable General Power of Attorney. This power of attorney is the most extensive option available. It gives the agent broad authority to make decisions and take action on your behalf. These are often used in situations where you become incapacitated or you are unavailable for any other reason. It is crucial that you trust the person you are granting this power to because this type of document can be prone to abuse. The word "durable" means that the   power of attorney will still be active even if you lose your mental capacity.
  • Limited or Special Power of Attorney. This document applies to only very specific aspects of your life. For example, you may want to grant someone control over a property to maintain and manage it while you are out of the country. A document that fulfills this purpose may be limited in both timeframe and scope.
  • Springing Power of Attorney. This type document only “kicks in” if certain conditions are met. The most common example is one where you lose mental capacity, and you have arranged for a loved one to take care of your affairs if this happens. Be careful though, because of  HIPPA laws, it sometimes makes it difficult to prove a person's incapacity without having an existing power of attorney in place so one can speak to a doctor or review medical records.
  • Healthcare Power of Attorney. A healthcare power of attorney gives someone the authority to make your healthcare decisions if you are disabled due to illness or an accident. This person will provide doctors with permission to operate, for example, as well as make all medical decisions on your behalf. It is critical that you let this person know your expectations regarding how you want your healthcare to move forward in these situations. particularly with end of life issues. A Living Will, or advance medical directive, works in conjunction with a healthcare power of attorney as it puts on paper your desires relative to those issues.

Someone who creates a power of attorney must be competent at the time to do so. That means that planning ahead is vital to creating a valid, legal power of attorney document.  Also, keep in mind that you can appoint the same individual as your agent for both the financial and healthcare power of attorney, or you can appoint different people for each one. The choice is totally up to you. Perhaps you have one child who is a financial wiz and another child in the medical profession. Thus, you may want to appoint each respective child as agent for their area of expertise.

The key to all of this is signing a power of attorney while you have the capacity to do so. So many times in my law practice I am called in to do a power of attorney, but the individual does not have the capacity to sign. At that point, the families only option is interdiction which can be costly. That is why powers of attorney must be a part of every estate plan.

Chip LoCoco

Attorney at Many & LoCoco



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