Power of attorney is a legal document that an individual, sometimes called a grantor, uses to deputize another individual to act on behalf of the grantor. This individual sometimes called the agent or the attorney is then legally bound to act on behalf of the grantor in carrying out their wishes.
Power of attorney can grant broad powers to the agent to act on the grantor’s behalf. As a limit of this power, agents wielding power of attorney are bound to act as fiduciaries. This means that they must act responsibly and practices that prioritize the grantor's safety, security, and prosperity.
Power of attorney generally applies in two important circumstances: finances and healthcare. An agent who is granted financial power of attorney is authorized to control the accounts and assets of the grantor as though they were their own. This allows the agent to sell or buy a property that the grantor wanted to be sold or bought, transfer funds to pay for services that the grantor requested, and handle financial institutions by filing taxes on the grantor’s behalf or depositing their social security checks.
An agent who acts as a power of attorney for healthcare has different responsibilities. Often this agent is responsible for mundane things like reviewing medical records, making doctor’s appointments, or advocating for the grantor’s medical wishes if they are unable to do so. This can even extend to having the agent remove the grantor’s life support or enforcing the grantor’s do not resuscitate order.
In general, power of attorney is a valuable tool for individuals to express their desires for how the end of their life should go as well as an instrument to ensure that they are cared for by a trusted individual.
There are three main types of power of attorney: durable, non-durable, and springing. Each of these forms of power of attorney has distinct advantages and disadvantages that should be considered before signing a power of attorney document.
A durable power of attorney is a permanent legal authority authorizing the agent to act on the grantor’s behalf. It is beneficial to have a durable power of attorney since it ensures that the agent can immediately begin to act on the grantor’s behalf if it ever becomes necessary. Some people may have reservations about legally giving someone permanent power of attorney over their affairs, but it is important to note that unlike in a system like guardianship, the grantor does not give up their rights, they merely authorize someone else to also act on their behalf. A durable power of attorney can last until the grantor passes away, or until it is revoked by the grantor.
Non-durable power of attorney, also called a general power of attorney, is more restricted than a durable power of attorney. The main difference is that the jurisdiction of non-durable power of attorney is more narrow. If the grantor ever becomes incapacitated, either physically or mentally, then a non-durable power of attorney is stripped of their abilities. This makes non-durable power of attorney beneficial for individuals who fear overreach or only need a small amount of guidance, but it does remove a key benefit of power of attorney: the ability of the agent to advocate for the grantor when the grantor cannot advocate for themselves.
Springing power of attorney, also known as a conditional power of attorney, is the inverse of non-durable power of attorney. Where non-durable power of attorney is revoked when the grantor is incapacitated, springing power of attorney is triggered by a specific event: most often the grantor’s incapacitation. This form of power of attorney can be less taxing in general since, in most instances, the agent will only need to act on behalf of the grantor while the grantor is in a state that was agreed on, usually incapacitation.
However, the major drawback to springing power of attorney is that it can be difficult to establish that the power of attorney has been triggered. For example, if a doctor or other entity does not believe that the conditions of the power of attorney are met, then the agent will first have to fight to prove that they are before they can begin to fulfill their duties.
If you want to protect your wishes after you can no longer advocate for yourself, you will need to establish a power of attorney. To ensure that you establish a safe and effective power of attorney you will need a trusts & estates attorney.
An experienced trusts & estates attorney can consult with you about your wishes and your situation to advise you about what type of power of attorney would best suit your needs. Once you have decided what kind of power of attorney you need, your trusts & estates attorney can craft a carefully worded power of attorney document that establishes limits and responsibilities that will ensure that your wishes are respected with as little room for overreach as possible.
