A Power of Attorney Form is a written agreement authorizing a third party to represent or act on another’s behalf in private affairs, business, or legal matters. The person authorizing the other to act is called the principal, grantor, or donor of the power of attorney. The person authorized to act on behalf of the grantor is called the agent. In some states, an agent is called an attorney-in-fact.
A power of attorney is often executed for medical reasons or matters related to health care. This type of power of attorney gives the agent the power and rights to make health care decisions on behalf of the grantor. This includes the decision to terminate health care or life support.
Recently there has been an increasing awareness of a special power of attorney called the advance health care directive. This power of attorney is also called a living will. Requirements for the advance health care directive vary from state to state. California and New York have unique requirements that are not typical of other states.
A durable power of attorney gives the agent the authority to act on behalf of the grantor until the grantor dies or becomes incapacitated. In the event that the grantor becomes incapacitated because of mental or physical illness, the power of attorney can continue but only if the grantor specified in the agreement that the power will continue in the event of the grantor becoming incapacitated.
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Types of Power of Attorney Forms
Power of Attorney Forms For All 50 States
Types of Power of Attorney
A power of attorney may be: special (also called limited), general, or temporarily limited. A special power of attorney is one that is limited to a specified act or type of act. A general power of attorney is one that allows the agent to make all personal and business decisions A temporarily limited power of attorney is one with a limited time frame. If ever required, a durable power of attorney can be revoked or changed as long as the principal is still mentally competent to act.
Durable power of attorney
Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes “incapacitated,” meaning unable to grant such a power, because of physical injury or mental illness, for example, unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated. This type of power of attorney is called “power of attorney with durable provisions” in the United States or “enduring power of attorney” elsewhere. In effect, under a durable power of attorney (DPA), the authority of the attorney-in-fact to act and/or make decisions on behalf of the grantor continues until the grantor’s death.
Financial Power of Attorney
A financial power of attorney is usually considered a general power of attorney. The grantor gives another person legal authorization to carry out the grantor’s financial affairs. Businessmen quite often execute a financial power of attorney when traveling or out of town for an extended period of time. The document designates a trusted friend or business colleague to handle all financial transactions on behalf of the grantor.
IRS Power of Attorney
Despite the common misconception, the IRS Power of Attorney does not give the IRS authority to act on your behalf. The legal document can be signed to give another persons, usually a tax lawyer, the right to deal with the IRS on your behalf. The official IRS form to designate another person to handle your tax issues is Form 2848 – Power of Attorney and Declaration of Representative.
Lasting Power of Attorney
A lasting power of attorney is a legal document allows you to appoint another person or persons to make decisions on your behalf. This gives you more control over what happens to you if you become incapacitated (physically or mentally) and are unable to make decisions on your own. The person being appointed attorney-in-fact must be over 18 years of age and be mentally competent.
Medical Power of Attorney
Some states use the term medical power of attorney rather than health care power of attorney. This power gives a third party the authority to make health-care decisions for the grantor, up to and including the termination of care and life support. The grantor can give the person limited decision-making powers or allow all decisions to make on his or her behalf. In some states a medical power of attorney is called a “health care proxy” or “health care representative.”
Relationship with advance health care directive
Related to the health care power of attorney is a separate document known as an advance health care directive, also called a “living will”. A living will is a written statement of a person’s health care and medical wishes but does not appoint another person to make health care decisions. Depending upon the jurisdiction, a health care power of attorney may or may not appear with an advance health care directive in a single, physical document. For example, the California legislature has adopted a standard power of attorney for health care and advance health care directive form that meets all the legal wording requirements for a power of attorney and advance health care directive in California. Compare this to New York State, which enacted a Health Care Proxy law that requires a separate document be prepared appointing one as your health care agent. Advance health care directives that are legal in all states are increasingly available online, including the MyDirectives advance health care directive in the United States.
Springing power of attorney
In some U.S. states and other jurisdictions, it is possible to grant a springing power of attorney; i.e., a power that takes effect only after the incapacity of the grantor or some other definite future act or circumstance. After such incapacitation the power is identical to a durable power, but cannot be invoked before the incapacity. This power may be used to allow a spouse or family member to manage the grantor’s affairs in case illness or injury makes the grantor unable to act. If a springing power is used, the grantor should specify exactly how and when the power springs into effect. As the result of privacy legislation in the U.S., medical doctors will often not reveal information relating to capacity of the principal unless the power of attorney specifically authorizes them to do so.
Determining whether the principal is “disabled” enough to initiate this type of representation is a formal process. Springing powers of attorney are not automatic, and institutions may refuse to work with the attorney-in-fact. Disputes are then resolved in court.
Unless the power of attorney has been made irrevocable by its own terms or by some legal principle, the grantor may revoke the power of attorney by telling the attorney-in-fact it is revoked. However, if the principal does not inform third parties and it is reasonable for the third parties to rely upon the power of attorney being in force, the principal might still be bound by the acts of the agent, though the agent may also be liable for such unauthorized acts.
Temporary Power of Attorney
A temporary power of attorney is also called limited power of attorney and special power of attorney. The grantor gives another person temporary authority to act of his or her behalf. Most states require a temporary power of attorney to allow someone else to register your motor vehicle. The special authorization can be restricted to a single event, such as registering a car, or for a specific period of time like one week.
Standardized Power of Attorney Forms
Standardized forms are available for various kinds of powers of attorney, and many businesses provide them for their clients, customers, patients, employees, or members. However, the grantor should exercise caution when using a standardized POA form obtained from a source other than a lawyer because there is considerable variation in approved formats among the states. In some states statutory power of attorney forms are available. Care in using these forms is important because some agents have used their authority to steal the assets of vulnerable individuals such as the elderly.**
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