Power of Attorney

I have found in my practice that many people do not understand the limitations of a Power of Attorney and sometimes think it can be used like a will.  Let me make one thing clear.  A Power of Attorney has legal validity only during a person’s lifetime and a will has legal validity only after a person dies.  When “A” grants “B” a Power of Attorney, “A” is giving “B” the right and privilege to make all of the financial and other types of

 

 

decisions for “A” that “A” could make on his on, except for health care decisions.  The Power of Attorney is intended to be used if “A” becomes incapacitated, but can also be used even if “A” is not incapacitated, although this is rare.  Therefore, “A” needs to be sure that “B” can be trusted to make decisions in “A’s” best interest.

There are several types of Power of Attorney. The general, durable Power of Attorney is wide-ranging and is valid until revoked by the grantor.  A Limited Power of Attorney is given for a limited purpose and for a limited time.  It is usually used to allow another to sign a particular document on the grantor’s behalf when the grantor is unavailable.  A Health Care Power of Attorney is used to allow another to make health care decisions on behalf of the grantor and spells out specifically what decisions can be made and how they should be made.

I encourage everyone to grant a durable Power of Attorney to your spouse, child or someone you trust.  Then, if something should happen to render you incompetent, your Attorney in Fact could handle your affairs without the need of an expensive Court action to appoint a Conservator.  Unlike a will, a Power of Attorney is recorded in the public records at the Courthouse.  There are two other things to keep in mind about a Power of Attorney.  First only give a power of attorney to someone you really trust because you are giving that person the power to deal with your assets, including selling your assets.  Second, the power may be used not only when the person is incapacitated but also when he could act for himself.  Thus, I think everyone needs a Power of Attorney, a will and possibly a special use Power of Attorney.