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FAQ About Power of Attorney

by: AARP, from: AARP, November 2008

A "power of attorney" is a written document in which you (the "principal") appoint someone else (called the "agent" or "attorney-in-fact") to act for you. Your agent can do any legal act you ask him or her to perform.

Why Is a Power of Attorney Important?

Everyone should think about having a power of attorney. Having one can be more important to your personal well being than a will. The power of attorney allows you to pick someone you trust to handle your affairs if you cannot do so yourself. It gives you peace of mind, reassuring you that in an emergency, someone you choose will have the authority to act for you. If you don't have a power of attorney and you are suddenly incapacitated, your family may have to go through an expensive and time-consuming court action to appoint a guardian or conservator to make decisions for you.

Are There Different Types of Powers of Attorney?

Yes. Powers of attorney can differ depending on when you want the powers to begin and end and on how much responsibility you want to give your agent.

A conventional power of attorney begins when you sign it and continues until you become mentally incapacitated. But most people want someone to make decisions for them when they are unable to do so. If so, you have to say so in your document.

A durable power of attorney also begins when you sign it, but it stays in effect for your lifetime unless you cancel it. You must put specific words in the document stating that you want your agent's power to stay in effect even if you become incapacitated. If you want this feature, it's very important that you have these words in your document.

A springing power of attorney begins only when a specific event happens, such as when you become incapacitated. Your attorney must carefully draft a springing power of attorney to avoid any difficulty in determining exactly when the "springing" event has happened.

All powers of attorney come to an end at your death. Your agent will have no power to make any decisions after you die.

Responsibility

You can select the responsibilities, or powers, you want your agent to have. You can authorize your agent to do one thing, such as sell your car. Or you can give your agent the authority to do any legal act you could do yourself. You can give the agent a wide range of powers, such as having access to bank accounts, selling stocks, and managing real estate. You may want your agent to sign your income tax return, apply for benefits on your behalf, or make gifts to your favorite charities. Design your power of attorney to fit your anticipated needs.

Are There Any Risks Associated With Powers of Attorney?

The most important way to reduce any risk is to choose your agent carefully. Select someone you trust completely. Never forget that you are giving your agent the opportunity to access your funds at a time when you may not be able to keep tabs on what the agent is doing. So the person must be very trustworthy. You may also want to add ways for other people to check up on what your agent is doing when you cannot.