How to Grant a Power of AttorneyBy Tom Speranza, J.D.
How to Grant a Power of AttorneyBy Tom Speranza, J.D.
The term "power of attorney" refers to the authority that someone, called the principal, grants a person they trust, known as the agent or attorney-in-fact. These types of authority often include the ability to make decisions for the principal about financial and property matters. They can also appoint an agent to make healthcare-related decisions on behalf of a principal if he or she becomes mentally incapacitated. Most states call this a medical or healthcare power of attorney.
Scope of Authority
Although a power of attorney can be as broad or narrow as the principal wants, a typical situation involves the principal giving the attorney-in-fact enough authority to manage some aspect of the principal's life. For example, most financial powers of attorney empower the agent to complete transactions such as:
- Buying or selling real estate, stock, and other assets
- Depositing and withdrawing money from the principal's bank, investment, and retirement accounts (and making investment decisions for such accounts)
- Purchasing or terminating insurance policies and annuity contracts
- Making estate planning decisions that might include structuring and signing the principal's wills and trusts
Similarly, a healthcare power of attorney usually grants the attorney-in-fact broad decision-making about:
- Choosing doctors
- Consenting to medical procedures, surgeries, and the administration of medication
- Choosing an appropriate care facility for the principal (for example, a hospital, nursing home, rehab center, or assisted living community)
- How to best fulfill the principal's wishes under a living will or advance medical directive
Drafting a Power of Attorney
Since this is a legal document governed by state law, it is not enforceable unless it complies with the laws of the applicable state (in most cases, the state of the principal's permanent residence). The easiest way to grant an enforceable document is to hire a lawyer licensed to practice in the relevant state. If you want to write a power of attorney yourself, follow these steps:
1. Research state law.
Each state has passed one or more laws governing these documents. Often, financial powers of attorney are subject to one statute while healthcare powers of attorney are subject to a different statute. An online search can help you locate your state's official website of current statutes and regulations (often called "[State Name] Consolidated [or Revised] Code" or "[State Name] Consolidated [or Revised] Statutes"), and the search function on the state's website can help you find the relevant laws.
Some states, such as Ohio, make the process relatively easy by providing a standard form; others, such as Pennsylvania and Missouri, require specific forms with disclaimers or signature sections that must appear, word for word, in the document. The standard required language and disclaimers are different in both a financial and a healthcare power of attorney.
2. Fill in the basic information.
Every document must include the following basic information:
- Principal's full name, permanent address, and phone number
- Agent/attorney-in-fact's full name, permanent address, and phone number
- Identity of any successor agents chosen by the principal to act as the agent/attorney-in-fact if the principal revokes the initial agent's authority or if the agent resigns
- The term, or length: Does it take effect immediately or only if a triggering event, such as the principal's mental incapacity, happens in the future? Does it have a specific termination date?
- Scope of the agent's authority: for example, the categories of the principal's assets the agent can manage, the types of financial transactions the agent can complete, or the range of medical decisions the agent can make
- Any specific limits on the agent's authority or any other special instructions for the agent
3. Follow mandatory signing formalities.
Each state has specific laws concerning the signing and witnessing of powers of attorney. Sometimes certain language must appear above and below the signature blocks. States often require witnesses and/or notarization for the signatures. If state law requires one or more witnesses (other than the notary) to the signatures, they must be people who are not the agent appointed in the document.
If the principal physically cannot sign the document, the principal can designate someone other than the agent to sign on his or her behalf in accordance with relevant state law.
Validity of Copies and Originals
In most states and situations, a photocopy or electronically transmitted version of a power of attorney is just as legally valid as an original, but it's a good idea to create, sign, and save some extra original versions for use as reliable evidence of the attorney-in-fact's authority. A safe deposit box at a bank is a good place to store additional signed copies.
A power of attorney is an important document that can set you up with the help you may need from a trusted individual. Make sure you follow the applicable laws in your state so that the form will be valid whenever the time comes for your selected attorney-in-fact to make decisions for you. If you need any help drafting a legal form, consider the assistance of an attorney to ensure it will be valid and enforceable in your state.
This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.
Ready to appoint a power of attorney?
Next ArticleIs a Power of Attorney Liable for Debts?
Browse by category
Ready to begin?
We can help guide you.