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Power of Attorney: What is it?

A power of attorney is a legally binding document that gives someone (known as an agent or attorney in fact) the legal authority to act for another person (known as the principle). A power of attorney is a crucial part of the estate planning process, but it can also be used if someone is leaving the country for an extended period of time and plans to return. It would enable another person to take care of any obligations that the principle has while they are out of the country.

In most states, agents must be at least 18 years old. It’s important that you choose an agent that you believe will follow-through on your wishes and that they’re willing to fulfil the fiduciary duties that come with their position. You should also have a back-up person in mind in the instance that your agent is unable or unwilling to act as your agent in the future.

Two of the most common uses of a power of attorney are:

  1. A member of the armed forces is deployed out of the country.
  2. Elderly individuals want to appoint someone to handle their affairs.
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Contents of A Power of Attorney

These two-common power of attorney scenarios illustrate how versatile a POA can be. A member of the armed forces who plan to return and resume their life. So, in that case, they would choose a special type of POA that is revocable. When a power of attorney is revocable, it means that the agent or attorney in fact will only take care of those issues during the period of time that the principle is unable to do so. When the principle is able to take over their responsibilities again, the agent no longer has the power to make those decisions.

In the second scenario, elderly principles may have a revocable or a non-revocable power of attorney depending on the need. Generally, a power of attorney is used to give someone the power to make financial decisions (such as paying bills), business decisions, and decisions about personal property (such as the sale of a home) in the event that the principle can’t make their own decision (most often due to physical or mental illness or disability). Some power of attorneys may also be written to give the agent permission to make medical decisions, treatment decisions, and end of life decisions if the principle is not able to speak for themselves.

Power of attorneys can be written to include provisions that fit the situation at hand. For instance, it could be used to give an agent the power to handle financial decisions such as paying monthly expenses and taking care of other assets. Then, there can be a separate document (known generally as a living will) that names someone else to make all medical decisions.

Power of attorney documents are state specific. This means that in order for the document to be legally binding, there must be certain elements that are met. In some states, a power of attorney is only legally valid if it is signed in front of a notary public. In other states, a power of attorney is legally valid as long as the signature of the principle is witnessed by two others who are not named as the agent.

Because a power of attorney document isn’t always revocable, it’s important that you think about your needs before you sign one. Often, a power of attorney is legally valid the very moment it is signed. Make sure that you choose the right type of power of attorney for your needs and that you understand how it works before you sign it.