A power of attorney is a legal document that bestows on someone the authority to act on behalf of someone else. The person who creates the power of attorney is called the “principal.” The person who is given that authority to act is known as the “agent” or the “attorney in fact.” The most common types of power of attorney are those for handling someone’s financial affairs or their medical care and treatment.
A power of attorney is an invaluable estate planning tool. Each power of attorney is unique and must be specifically drafted to accomplish its specific purpose. Each power of attorney will have its own terms and limitations, as well. A power of attorney can be either general or specific. As the needs of an individual and his or her family always vary, it is best to discuss your specific needs with an estate planning attorney to ensure the power of attorney is drafted appropriately.
Differences between a general and limited power of attorney
There are two types of powers of attorney that differ in the type of authority they convey to the agent. A general power of attorney provides very broad authority to handle, for example, all financial matters or all health care and medical treatment decisions. Whereas, a limited power of attorney provides more specific instructions for the agent or contains limitations on the scope of authority.
In most cases, a general power of attorney is created for the purpose of giving an agent full authority to handle all important decisions if the principal becomes incapacitated. In that situation, it can be assured that the principal’s affairs will not be left unattended. On the other hand, a limited power of attorney is generally used for carrying out specific duties or transactions. Once those duties have been completed or the goals accomplished, the powers are revoked.
Durable Power of Attorney
A durable power of attorney is a very powerful estate planning tool. Generally speaking, a power of attorney is automatically revoked if the principal becomes incapacitated for any reason. However, a special type of power of attorney known as a Durable Power of Attorney, remains in effect despite the principal’s incompetence. A durable power of attorney can also be created so that it is not effective until the principal is determined to be incapacitated.
A durable power of attorney normally contains language such as: “This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or a lapse of time,” or “This power of attorney shall become effective upon the disability or incapacity of the principal.” However, it is important to remember that, in order for a durable power of attorney (or any power of attorney for that matter) to be valid, it must be signed by you before you become disabled.
Although there are many do-it-yourself power of attorney forms out there, a legal document as important as a power of attorney should be drafted specifically for you, by an experienced estate planning attorney who understands what is required.