A power of attorney (POA) is a legal document that allows individuals to appoint someone they trust to make decisions on their behalf should they become unable to do so themselves. Whether it’s a young entrepreneur facing unexpected illness or an individual planning an extended trip abroad, understanding how different powers of attorney work can help ensure that your rights are respected. Here are four types of power of attorney to familiarize yourself with, each with its particular application: limited, general, durable and springing.
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What Is Power of Attorney
Power of attorney is a vital legal document that grants one individual, known as the agent or attorney-in-fact, the authority to make financial and legal decisions on behalf of another person, known as the principal. This arrangement is commonly used when the principal is unable to manage their own affairs due to incapacity or absence.
The legal authority granted by a power of attorney is customizable, allowing principals to specify the powers given to their agents as they see fit. Agents might be authorized to handle tasks such as managing banking transactions, signing checks, buying or selling property and making investment decisions. With this authority comes a significant responsibility: Agents are bound by a fiduciary duty to act in the principal’s best interests and avoid conflicts of interest.
It’s important to understand that “incapacity” refers to a situation where an individual is legally deemed unable to make informed decisions for themselves due to mental or physical impairments. When comparing a POA to legal instruments like guardianships or conservatorships, it’s clear that a power of attorney typically allows more flexibility and control before incapacity occurs. However, you should also note that the laws governing a POA can vary by jurisdiction and consulting with a legal professional is advised to navigate these complexities effectively.
Types of Power of Attorney
There are four main types of power of attorney: limited, general, durable, and springing. Each is tailored to meet specific needs and grants varying levels of authority to the agent. Knowing the distinctions between them is important to ensure your legal and financial security.
1. Limited Power of Attorney
A limited or special power of attorney grants the agent authority to act on the principal’s behalf for certain matters or events. It is often used for isolated transactions like selling property in a different state, managing a specific financial account while the principal is abroad or handling tax filings. So, for example, if you cannot attend your home’s closing sale due to travel restrictions, you could assign someone limited power of attorney to sign the necessary documents in their absence.
This type of arrangement is clearly defined by the principal, outlining specific time frames and tasks. The agent’s authority ends when the event is complete or upon the agreement’s expiration date. These restrictions protect the principal from unauthorized actions by the agent. While limited power of attorney is restrictive, it’s not necessarily inferior. It provides a focused and secure approach to managing particular aspects of the principal’s affairs. However, common misconceptions may lead some to overlook its potential benefits or mistakenly view it as overly complicated.
2. General Power of Attorney
A general power of attorney allows the agent to perform a diverse array of financial actions on behalf of the principal. These can include managing bank accounts, signing checks and buying or selling property. In effect, the agent can execute almost any act the principal could do, barring any constraints specified in the POA document.
While someone with general power of attorney is bound by fiduciary duty, the broad authority conferred comes with risks, including possible mismanagement or unauthorized transactions. It is therefore essential to appoint an agent who is not only competent but also has the complete trust of the principal. General power of attorney typically remains in place until the principal dies.
3. Durable Power of Attorney
A durable power of attorney remains in effect even if the principal becomes incapacitated, allowing for the continuity of management over the individual’s affairs. This is vital, for instance, during unexpected medical emergencies where an individual might lose decision-making abilities. This type of power of attorney, endorsed by the Uniform Power of Attorney Act in many states, helps prepare for unforeseen incapacity without the need for court intervention.
When creating a durable power of attorney, selecting a competent and trustworthy agent is crucial. The powers granted should be comprehensive enough to handle emergencies. It’s also beneficial to consult a legal professional to ensure that the durable power of attorney aligns with the principal’s wishes and complies with state laws. Then again, in some states like Colorado and Georgia, power of attorney is automatically durable unless the document explicitly states that it should terminate in the event of incapacity.
4. Springing Power of Attorney
A springing power of attorney becomes active under certain conditions, such as the principal’s incapacitation. This legal arrangement “springs” into action when, for example, physicians determine that the principal cannot manage their affairs due to mental incapacity.
Although it’s similar to a durable power of attorney, a springing POA arrangement only takes effect when a triggering event or condition occurs. A durable power of attorney, on the other hand, starts immediately and continues through a person’s incapacitation.
While springing power of attorney offers the principal control over their affairs until incapacitation is confirmed, this control can also complicate matters. Legal and medical complexities may arise, possibly delaying when the agent needs to act swiftly. Disputes within the family about the principal’s competence may lead to court disputes. Therefore, when considering a springing power of attorney, it is essential to clearly define the criteria for incapacity and discuss these with potential agents and healthcare providers beforehand.
What Is Medical Power of Attorney?
The four main types of power of attorney confer the authority to make financial decisions for a principal, but they notably do not cover medical decisions. To grant someone power over your medical care, you’ll likely need a separate document called a medical power of attorney.
This legal instrument empowers an appointed agent or healthcare proxy with the authority to make healthcare decisions on behalf of the principal. This proxy may be faced with choices about accepting, refusing or discontinuing medical treatments, including those that are life-sustaining. Imagine a scenario where someone is in a coma after a serious car accident. Having a medical power of attorney in place ensures that the person they trust the most is at the helm of their medical care, adhering to their preferences.
Typically, a medical POA is activated when the principal becomes unable to make their own medical decisions, as determined by a medical professional. These are weighty considerations, and the role of the healthcare proxy should not be underestimated.
Bottom Line
Power of attorney can be an indispensable tool that provides peace of mind and continuity in the management of one’s affairs. Whether catering to specific transactions through a limited power of attorney, conferring extensive authority via a general power of attorney, ensuring durability in the face of incapacity or setting conditions with a springing power of attorney, each type is designed to suit specific needs and preferences. The medical power of attorney, meanwhile, stands out as a critical mechanism for safeguarding personal healthcare decisions. Therefore, selecting a reliable and ethical agent is as crucial as the legal document itself.
Estate Planning Tips
- As you plan your estate, you may be faced with an important choice: will you draft a will or create a trust? Transferring your estate to a trust will enable it to bypass probate, ensuring privacy. Wills on the other hand typically have to go through the probate process, which can take months and lead to extra expenses. However, a will is needed if you have minor children and need to assign a guardian to care for them – something a trust cannot do.
- A financial advisor with estate planning expertise can help you plan for the day when your assets and property will be passed on to the next generation. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
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