What is a power of Attorney
by Gay Redmile
Power of Attorney is a legal document where one person authorizes another to act on their behalf. It allows that authorized person to manage business and/or financial affairs when one person is no longer able to do so. It may be required due to illness, overseas travel or mental incapacity.
Why is it important to organise a Power of Attorney?
Should you be considered incompetent to deal with your finances – you need somebody else to be authorised to deal with your affairs. A Power of Attorney document allows you to choose the person, with defined authority and limits if desired, the power to protect, or re-arrange, your assets.
The person named in a Power of Attorney to act on your behalf is referred to as your “agent” or “attorney-in-fact.” With a valid Power of Attorney, your agent can take any action permitted in the document. Often your agent must present the actual document to invoke the power.
If you do not have a Power of Attorney and become unable to manage your personal or business affairs, it may become necessary for a court to appoint one or more people to act on your behalf. Usually referred to as guardians, conservators, or committees. If a court proceeding is required then you may not have the ability to choose the person who will act for you.
By executing a Power of Attorney for Finances (also referred to as a Durable Power of Attorney for Finances) you can decide who you want to make decisions about your legal and financial matters. You can be very specific about what actions you are authorizing your partner (or agent) to make, including which accounts they has access to and the types of decisions they can make.
A Power of Attorney for Health Care allows decisions to be made specifically on what kind of treatment the person wants, based on their medical condition.
A Living Will in some ways duplicates the information in the Power of Attorney for Health Care. It is a separate document that lets your family members know what type of care you do or do not want to receive should you become terminally ill or comatosed. It can also cover situations in which a person may survive but is not capable of making their own medical decisions.
It can be a directive stating that there is to be no heroic measures to keep the person alive when there is no realistic prospect of any meaningful recovery.
An Enduring Power of Attorney is a legal document authorizing a named person or people to act on your behalf. Subject to certain conditions it continues in force until death.
Guardianship is a legal relationship whereby a probate court gives a person (the guardian) the power to make personal decisions for another (the ward).
A family member or a friend can initiate the proceedings by filing a petition in the probate court where the person lives. A medical examination by a licensed doctor may be necessary to establish the person’s condition. A court of law will then determine whether that person is unable to meet the essential requirements for their health and safety.
As long as you are alive you have the power to revoke the Power of Attorney. To do this you must contact your attorney-in-fact to advise that the Power of Atorney has been revoked.
You can also specify a date that the Power of Attorney will expire.
A Power of Attorney is also important for unmarried couples, who live together, when a partner becomes incapacitated and unable to make decisions. When this occurs the law usually assigns the incapacitated person’s next of kin as the decision maker. With a Power of Attorney, unmarried couples can give their partners the power to make decisions.
About The Author
Gay Redmile is the webmaster of several finance and investment sites. Having recently been named as Power of Attorney for her father – she realised how important it was for people to be aware of the implications of not having one in place.