How to Obtain Power of Attorney

Three Parts:Preparing to Execute a Power of AttorneyChoosing an AgentCreating a Power of Attorney

Power of attorney (POA) is a useful legal device that allows family or other caregivers to make decisions and conduct business in your name. Sometimes it is for convenience, such as when you need to authorize someone to sell your house. It can also be a significant part of the care of a loved one who is ill or elderly. When you have power of attorney for someone, you can manage financial accounts and property, and, under certain circumstances, make medical decisions for that person.

Part 1
Preparing to Execute a Power of Attorney

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    Determine what form of POA is right for the situation. There are three main categories of power of attorney. Each requires a specific legal form and authorizes a different scope of responsibilities. In each type of POA, the person giving the authority is the grantor or principal and the person who receives the responsibility is the grantee or agent.[1]
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    Consider a general power of attorney. A general POA grants a wide and far-ranging scope of authority. A general POA allows the agent to make all decisions for the grantor except for anything listed in the POA as an exception. For example, a general POA can specify that the agent cannot sell or mortgage the grantor's real estate during the grantor's lifetime.
    • There is a difference between a regular and durable power of attorney. A regular power of attorney expires when the grantor becomes mentally incapacitated. A durable power of attorney continues in full force, regardless of the principal's health, until it is explicitly revoked or the grantor dies.[2]
    • In all cases, the power of attorney expires at the death of the grantor. A power of attorney cannot be used as a substitute for a will.[3]
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    Explore a durable power of attorney. This form of POA can be worded so that it does not go into effect until the grantor becomes mentally incapacitated. This is called a springing power of attorney because is "springs" into effect when certain conditions are met.[4]
    • You can define "incapacity" in the POA document. For example, you can require that one or more doctors examine you and make a diagnosis of your mental state and opinion on whether you will recover.
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    Specify a limited power of attorney. If you have an action or short period of time that you need to grant authority, consider a limited power of attorney. For example, a power of attorney might be granted to someone to handle your banking while you are out of the country on a job assignment. The POA will end when you come home. Another example is giving someone power of attorney to buy or sell property. The authority ends when the transaction is complete.[5]
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    Draft a medical power of attorney to grant authority to make medical decisions. That authority can range from authorizing treatment all the way up to making end-of-life decisions if you are too ill or injured to speak for yourself. The American Bar Association has created a step-by-step packet to guide a principal through the process of naming a medical POA agent.[6]
    • The ABA medical power of attorney package is not valid in Indiana, New Hampshire, Ohio, Texas, and Wisconsin. Most hospitals have state-specific forms or you can consult with an attorney skilled in estate planning for assistance.
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    Gather your documentation. Once you determine the best POA format for your situation, you need to gather documentation about property and accounts for your agent. Necessary documentation for a general durable POA that will be in effect immediately may include checkbooks, bank statements, investment statements, property deeds, mortgage documents, household accounts, and titles and insurance for vehicles.
    • If the POA is sent to not go into effect until the incapacity of the grantor, the documents can be stored in a safe place that is accessible to the grantor and the agent.
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    Establish the timeframe and parameters. At this stage you need to decide what authority you are willing to delegate and for what time period it will be valid. Without specific definition, a general POA will give your agent almost unfettered authority over your affairs.
    • It is a good idea to specifically empower your agent to be able to access your safe deposit box. It is a gray area in that it isn't a financial account and it isn't property. Depending on the banking laws and individual bank policy, your agent may be denied access to your safe deposit box without explicit authorization.[7][8]
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    Research the law in your state. Even if the principal and agent live in different states, the POA must conform to the state where it is granted. This will usually be the home state of the principal or where the property is located. Some states, like California, have detailed statutes on language that must be included in the power of attorney. To find your state's law, do an online search for "power of attorney statute for [state]".

Part 2
Choosing an Agent

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    List possible agents. Most POA agents are family members, but can also be a friend or someone else you trust. You want an agent who you can trust to handle your affairs when you are at your most vulnerable. Things to consider are availability, responsibility, willingness to assume the responsibility, and trustworthiness.
    • You can split authority between two or more agents. For example, someone can manage your household affairs, while someone else handles your investment accounts.
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    Talk with and screen your potential agents. A durable power of attorney can be time-consuming and last for years if the principal becomes disabled or seriously ill. Your agents must be ready and willing to assume responsibilities for your accounts and act in your best interests.
    • An agent may be subject to civil and criminal penalties if they exploit the power of attorney authority for personal gain.[9][10]
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    Choose an alternate agent. The duties under durable power of attorney can last for years. Your agent may decide she doesn't want to do it anymore, may die, or move from the area. To provide a seamless transition in management of your affairs, you should name at least one alternate agent who is as responsible and trustworthy as the primary agent.
    • If your estate is large or complex, consider naming an estate or trust attorney as an alternate. The attorney will have the authority to manage your portfolio and vet and choose a new primary agent.

Part 3
Creating a Power of Attorney

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    Obtain the correct form. You will need a form that conforms to the laws of your state. If your estate is large or complex (for example, rental properties or extensive investments), you should have your power of attorney drafted by an estate attorney. Otherwise, for more typical estates, you can find forms online,[11] through the Secretary of State office in many states,[12] or from an office supply store.
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    Fill in the basic required information. Regardless of the state, a POA is not valid unless it has either a start date or a specific springing event such as mental incompetence. You should also have the names and addresses of your agent and at least two alternate agents.
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    Detail the delegations of authority. A standard form will have the most common types of delegated authority, including banking, tax issues, and property management. If there are any standard provisions that do not apply, thoroughly line it out and initial the edit.
    • List out any other responsibilities, using additional pages if necessary, and attach them to the document.
    • Typical responsibilities can be spelled out. "Pay all monthly utilities on [address]," or "File federal, state, and local tax returns in the name of the principal."
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    Create the restrictions on the agent's authority. Standard forms will also have some common restrictions and you can edit and add others to suit your specific situation. A common restriction forbids an agent from transferring property into his own name.[13]
    • There are some standard restrictions on the agent. For example, the agent must not co-mingle the principal's funds with her own. [14]
    • Other restrictions can be specific to the situation, such as, "Agent may not sell, mortgage, or otherwise encumber the homestead of the principal until after the principal's death" or "Agent may not delegate any authority to [name]. If [name] is allowed access to financial accounts, it renders this POA null and void."
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    Sign the POA and notarize your signature. Some states require a notary for the POA to be valid. However, even if not required by state law, it is still a good idea because it eliminates questions about the validity of the signature and mental capacity of the principal.
    • Sign an original for the principal and each agent and alternate agent in blue ink to differentiate it from a copy.
    • Most banks offer notary services to account holders. If the principal is in a nursing home or other medical facility, you should have an independent notary to avoid conflict of interest with the management of the facility.
    • The agent will be able to make copies of the executed POA for all accounts as needed.

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Categories: Power of Attorney