General vs. Durable Powers of Attorney

What is a Power of Attorney?

A Power of Attorney (POA) is a tool utilized across the world that grants authority to an agent on behalf of a principal within the scopes defined in the document, we’ll expand on these terms shortly. While in other countries its scope and limitations vary, in the United States there is a general usage that is recognized in all states. While laws vary in each state, most of what you will read here will remain true, regardless of the state. On US Legal Forms, you can find a Power of Attorney form specific to your state. So, how does a power of attorney work?

When an individual requires assistance in handling their affairs, such as in the event of illness, they may grant legal authority to someone to manage their estate, healthcare, finances, or other affairs. The individual acting on their behalf is the agent, and the individual the agent is acting on behalf of is known as the principal. Depending on the situation, there are three main types of power of attorney available, and choosing the right one can make all of the difference. These types are special, durable, and general power of attorney. For the purposes of this article, we will not be discussing special POA’s, or the varied subsets of both durable and general POA’s.

Durable vs. General Power of Attorney

First of all, let’s discuss the question of “what is a durable power of attorney?”

A durable power of attorney is particularly useful in regards to healthcare and in situations where the principal is incapacitated. In fact, the power of attorney papers may specify the conditions under which the POA becomes active and legally enforceable; as is often the case. The reason for this is that the document is created and signed preemptively to incapacitation. The durable POA can also be effective immediately upon signing, remaining valid after incapacitation of the principal, and is entirely revocable at any time by the principal if they are of sound mind to do so. You can find a durable POA for your state here.

Under a durable power of attorney, the agent has the authority to make autonomous decisions on behalf of the principal without their direction or consultation; whereas, in a general power of attorney, the agent is assumed to be performing their duties under the direction and consultation of the principal.

As the principal is able to revoke a general POA at any time, and their incapacitation or death immediately nullifies the POA, the agent’s authority is slightly diminished. Because of this, the agent may find themselves in a situation where they are unable to maintain and care for the estate and medical needs of the individual. This is why it’s important to carefully consider the consequences of your POA choice.

In life, and full health, a general power of attorney agent may be necessary for a variety of reasons; for example, if the principal is disabled, bed-ridden, or extremely busy with time-consuming tasks. However, the latter is best dealt with by use of a special power of attorney that stipulates very specific powers the agent may use.

The authority granted by the principal depends on the language contained within the POA itself. However, in general, the power of attorney rights and limitations are within the scope of:

• Signing legal documents
• Executing and authorizing fiscal transactions
• Managing documents, including mail
• Managing utilities
• Etc.

And/or:

• The principal’s healthcare

You can find a General Power of Attorney for your state here.

How to get a Power of Attorney?

A legal power of attorney is one that was created by an adult who is 18 years old, or older, contains the principal’s signature (or to follow specific legal protocols if he or she is unable), and the signatures of at least two witnesses who can attest to the principal’s signing of the documents. Generally speaking, a power of attorney typically maintains its validity in another state, should you move, or need to be hospitalized in another state.

Once the document is signed, and all criteria are met, the power of attorney is legally valid.

How to Obtain Power of Attorney?

Only the person, or in rare cases, a conservator, is capable of granting power of attorney to an agent. While this may seem like a dead-end, it is not. If you’re in a situation where there isn’t a durable POA in place and the individual is now incompetent or incapacitated, you can seek conservatorship. Conservatorship grants similar legal authority, akin to guardianship but for adults.

Do You Need a Lawyer for Power of Attorney?

The short answer is no, albeit, it is always recommended when relinquishing such authority over your affairs to seek counsel with a lawyer to confirm that everything is valid and the scope is within your wishes.

How to Sign as Power of Attorney?

If the individual seeking to grant power of attorney is medically incapable of signing the documents, there are protocols in place in most states. Unfortunately, these rules change frequently and vary wildly between states. In this situation, it is recommended that you seek guidance from your local superior court and / or POA lawyer.

Do I Always Need to Prove that I have Power of Attorney?

Yes, if you are the agent within a POA arrangement, you will need to have the proper documentation with you everytime you perform an action on the principal’s behalf. For example, even if a bank manager is familiar with you and the situation, if he or she requests the POA and you don’t have it, they are required to refuse you the services that you are attempting to perform on behalf of the principal. The reason for this is that the POA may have expired or was revoked, nullified, or cancelled. In the event you have a general POA and the principal died, you may not act on their behalf without following proper probate procedures and even then, only the executor or personal representative may act on behalf of the estate. If the bank manager allowed you to withdraw money, or to do something you were not permitted to do, they may face a slew of legal repercussions, and the bank may face a very disruptive as well as costly lawsuit that may be accompanied by incredibly damaging fines by the state. As a result, you will be asked for your documentation fairly regularly.

In Conclusion

Powers of Attorney are incredibly powerful legal tools that can help you, your loved ones, and those around you. They are capable of allowing those who are unable to manage everything themselves to continue living, paying bills, handling their finances, and more, regardless of their current circumstances and condition.

Understanding the differences, limitations, and authority being granted by different types of powers of attorney is an extremely important first step on the road to recovering control over your life, or helping a loved one regain control over theirs. With this information in mind, we wish you and your loved ones all of the best.

In the US Legal Forms library, you can find a vast array of useful forms, including the Power of Attorney and Living Will / Health Care Directive and many more. 

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