A power of attorney grants someone else the power to perform legal acts for you, such as consenting to medical treatment or signing a contract in your name. Some states require the use of statutory forms for certain purposes, and some websites offer optional templates that you can use. You can use a power of attorney that you drafted yourself as long as it complies with state law.
There are generally two parties to a power of attorney -- a principal and the agent who performs legal acts on the principal's behalf. It is possible, however, to appoint more than one agent. The agent is bound by legal fiduciary duties regardless of the terms of the power of attorney. This means he must perform his acts with reasonable care, and he must act with strict loyalty to the principal. He may not profit from any disposition of the principal's assets, even if his profit does not hurt the principal. He may accept a reasonable fee in return for his services if so authorized by the principal. It is legally impossible to create an irrevocable power of attorney -- the principal may revoke it at any time, as long as he is mentally competent and able to communicate his intentions.
The power of attorney must clearly identify the principal and the agent and should specify exactly what legal acts the agent is entitled to perform. A seriously ill patient, for example, might authorize his physician to consent to treatment on his behalf or to choose from among several alternative treatments. The power of attorney should also state whether or not it is "durable." It is durable if it continues in effect even when the principal is mentally incompetent or unable to communicate. If the power of attorney does not mention durability, different states will apply different presumptions -- some states will treat it as durable, while other states will treat it as non-durable. Some states, such as Pennsylvania, require the inclusion of certain language provided by statute, such as a notice to the principal concerning the agent's legal rights and duties.
Different states apply different requirements for the execution of a power of attorney. In some states, a notary public must acknowledge the principal's signature by sealing and signing the document. Other states require at least two people to witness the principal's signature and to sign the power of attorney. If these formal requirements are not complied with, the power of attorney will not be valid.
Many states impose additional legal requirements to empower an agent to make gifts to third parties out of the principal's assets. New York, for example, requires the execution of a separate gift rider, the contents of which must include language identical to wording provided by state statute. An agent who makes a gift out of the principal's funds when the power of attorney fails to comply with state statutory requirements risks civil and perhaps criminal liability. An agent may never make a gift to himself out of the principal's assets.
References & Resources
- Lawyers.com: Powers of Attorney
- Florida Trusts and Estates Blog: The New Florida Power of Attorney Act
- National Caregivers Library: What is a Power of Attorney?
- Free Legal Documents: Power of Attorney
- Advantage Title: Power of Attorney New York Statutory Gifts Rider
- OneCle: Chapter 56, Pennsylvania Consolidated Statutes
- Photos.com/Photos.com/Getty Images