Enacting a power of attorney, in any form, is planning for the worst just in case it does actually happen.
But what exactly is power of attorney?
Power of attorney is a legal agreement between two parties that grants one or more persons the power to act on your behalf. The two parties include a principle – the person granting power of attorney – and an attorney in fact – the attorney in fact does not need to be lawyer.
There are many forms of power of attorney that cover a wide range of scenarios, and it basically means that you are giving someone else the authority to act on your behalf. This can be applied to many financial or medical situations. Typically, young, healthy people don’t need this, especially if they are single. Most often, powers of attorney are given to spouses or children of older or sick parents.
We all need someone we can trust. When it comes to power of attorney, you need someone who is able to carry out your personal affairs while you are incapacitated, or perhaps make sure everything you want to be carried out after your death is done so properly. There are numerous types of power of attorney that apply to many different situations.
Types of Power of Attorney
The general concept is usually put in play if you are not incapacitated – that is, you are still either mentally and/or physically capable of functioning – but need help signing documents, paying bills or any other financial transactions. This agreement usually becomes void upon your death, unless it is rescinded before then.
Durable Power of Attorney
This comes into play in case you become incapacitated, but the paperwork must be complete before anything of the sort occurs. Let’s say you slip into a coma; you’ll need someone to see that your financial affairs remain in order and who can make medical decisions if necessary. This is important, because a normal power of attorney agreement becomes null if the person who made it becomes incapacitated. If you don’t have this, the court may appoint a conservator or guardian whom you may not want executing these duties. One important thing to note if you become durable power of attorney for someone: you are not responsible for their debts, but you do have the ability to act on their behalf.
Springing Power of Attorney
Sometimes called “conditional power of attorney”, springing power of attorney is usually an alternative to durable POA and gains it’s namesake because it “springs” into effect when you are incapacitated, rather than the moment the documents are signed. It will often give specific definitions for “incapacitated,” and won’t take effect until you actually are so. This actually can lead to several problems including delays and HIPAA or privacy violations. If your agent has to wait for a doctor to deem you incapacitated AND deal with the bureaucracy of making sure that they are legally allowed to release your medical information, it could lead to days or even weeks with your finances unmanaged.
Medical Power of Attorney
This is sometimes known as a “living will,” and it gives one person or agent the ability to make medical decisions on your behalf if you are in any way unable to do so yourself. This is not uncommon, and something to remember is that if you are injured or sick, but are still coherent and able to give direction to doctors, this document does not give the POA acting authority in that situation. You can give certain instructions for specific events, to which the doctors and your acting POA can follow.
Limited Power of Attorney
In this agreement, the principal will give very specific instructions as to the matters he wants carried out. Usually, this is implemented for financial reasons, covers a certain timeframe and only covers a single transaction. For example, if you are out of town, you could give authority to the POA to sign any documents necessary.
If you are in need of a power of attorney agreement, you clearly have plenty of options, and it’s important to check your state’s laws before setting one up. But how much paperwork is involved for you and your agent?
How Do I Get a Power of Attorney?
There are online resources from which you can print off power of attorney forms, but it is always a good idea to have a lawyer supervise and look over all of the documents to make sure there aren’t any mistakes. Be sure to peruse your state laws, as there can be slightly different regulations regarding the necessity of witnesses, whether or not you need to actually know them, and the type of power of attorney needed in a given situation.
Can People Abuse the Power of Attorney?
Yes. You may have read of this happening to someone in the news, especially high profile celebrities worth a lot of money. And it usually involves the family member of an old relative trying to profit off of their estate. How does this happen though? Aren’t power of attorneys only granted to people whom they trust? Well, yes. But the most commonly documented cases of power of attorney abuse comes when someone convinces or deceives someone who may be elderly and not be functioning at 100 percent mentally to sign off on these privileges. Approximately 44 percent of these cases are financial, and 70 percent of them are committed by a family member.
When this happens, a lawsuit to recover any stolen money or property will usually be a long and drawn out process. Considering the amount of paperwork to be filed and looked over alone, it is tough to prove beyond a doubt that someone abused their privileges as power of attorney. The first step would be to prove that they violated their “fiduciary duties.” This states that the acting agent must put the principal’s needs before his own. So if the agent closes the principal’s bank accounts and sells their home while keeping all of the money for themselves, it can be determined that the agent violated their fiduciary duty.
So how can this be prevented? And perhaps more importantly, is it possible to rid the POA in this situation of their powers so that money can be recouped and any punitive damages can be properly compensated?
Can I Revoke Power of Attorney?
The good thing is, especially in regards to the aforementioned situation, is that power of attorney privileges can be revoked or discontinued. Usually, all that needs to happen is for the principal to make a written statement or fill out and mail a form stating that they want power of attorney to be revoked. You don’t even have to give a reason why you are revoking it. But what if the principal cannot factually state that they are of “sound mind and body?”
If the agreement is a durable power of attorney, this can be a bit complicated, as only the principal is allowed to revoke this, because a durable POA is designed to remain in effect after the principal becomes incapacitated or dies. So, if the agent is abusing their privileges as the durable POA it can also be revoked by a court if it finds that the principal was a victim of financial fraud.
It may be easier said than done, but there are a few things you can do to avoid becoming a victim of POA abuse. The main thing being that you should only give POA to someone whom you completely trust to act in your best interests. As evidenced by the documented cases of abuse, it is also important that this be done while you are still of sound mind and body.