Power of Attorney Between a Husband & Wife

By Larissa Bodniowycz, J.D.

Power of Attorney Between a Husband & Wife

By Larissa Bodniowycz, J.D.

A power of attorney is a legally binding document that grants one person, called an agent, the power of attorney for another person, the principal. Having the power of attorney allows the agent to act on behalf of the principal, taking any actions the principal would be able to take on their own. The power of attorney document dictates the scope of the agent's power.

Couple smiling across table from gesturing person

Reasons to Grant a Spouse Power of Attorney

People often wonder whether it is necessary to grant a spouse power of attorney. By law, spouses have certain rights, but there is a lot they cannot do on behalf of their significant other. For example, a person cannot withdraw funds from a bank account titled solely in that person's name.

There are a number of reasons why people grant their spouse as power of attorney. Deployed military personnel might want their significant other to manage the affairs while they are away on active duty. Others may do so as a precaution in case they forgot to add their significant other as a joint owner of a bank account or other property.

Perhaps the most common reason for granting power of attorney to a spouse is to ensure that they can immediately take over managing assets without a court order if the principal becomes incapacitated and cannot manage their own affairs. To continue to be effective after incapacity, the power of attorney must be a durable power of attorney.

When spouses grant power of attorney, it is usually reciprocal. This means that they both sign a power of attorney designating the other as their agent. Those with children often designate their children as back-up powers of attorney in case both spouses become incapacitated at the same time and cannot act for each other.

Granting or Revoking a Spouse's Power of Attorney

A power of attorney granted to a spouse is governed by the same rules and formed the same way as any other power of attorney. In all states, the principal must have legal capacity to enter into a contract, which usually requires that they are 18 years or older, and the power of attorney must be in writing and signed by the principal. Other requirements, including required witnesses at the signing and certain language used in the document, vary by state.

Relationships change, and sometimes people wish to revoke a power of attorney that they previously granted to their spouse. They can do so by following the instructions laid out in the power of attorney documentation or, if no instructions are given, by signing a written revocation. Keep in mind that some states require witnesses and a notary to attest to the signature.

If someone does choose to revoke or modify a power of attorney, they must give notice to the spouse serving as the agent and to all persons or entities who have the original power of attorney. This is true regardless of who the agent is. If you and your spouse want to give each other the authority through a power of attorney, you can do so by drafting a document and following the required steps within your local jurisdiction.

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