Automatic Power of Attorney Due to Health

By Teo Spengler

You can't assume that a spouse or family member will automatically be able to act in your stead if you become incapacitated. However, you can confer this authority with a durable power of attorney created according to state law. If you set up a springing durable power of attorney, it "springs" into existence automatically if and when you become incapacitated.

Power of Attorney

A power of attorney is a document you use to name someone to serve as your agent. The two most common types of powers of attorney appoint agents to handle financial matters or to make medical decisions. To be effective, the principal creating a power of attorney be mentally competent and must sign it in front of appropriate witnesses. States differ as to who must witness the principal's signature and whether the document must be notarized or recorded.

Durable Power of Attorney

The content of the power-of-attorney document describes the breadth of the power granted; it can give the agent authority to act for the principal in one limited transaction, such as the sale of a house, or grant a general to power to act in a wider breadth of transactions. Generally, a power of attorney expires when the principal dies or becomes incapacitated, but if you don't want the authorization to expire if you become incapacitated, you must prepare a durable power of attorney. A power of attorney authorizing an agent to make medical decisions if the principal becomes incapacitated must be durable to be effective. This document is commonly known as a durable power of attorney for health care.

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Springing Power of Attorney

A power of attorney is generally effective the moment it is signed and witnessed. It can, however, be created to become effective at some point in the future. Powers of attorney that do not become effective until some future event occurs are termed "springing" powers of attorney. Many people execute durable powers of attorney to name a trusted agent to make medical decisions for them if they become incapacitated; springing durable powers of attorney are those that only become effective -- "spring" into life -- when the principal becomes temporarily or permanently incapacitated due to health issues.

Competence

To be valid, the principal signing the power of attorney must be mentally competent. This means that if a person becomes incompetent without having first prepared a power of attorney, his family may have to go to court to establish who will make critical medical decisions. This process can be both expensive and time-consuming. In some states, the court will appoint a guardian or conservator to represent the principal, and family members are not always selected. Planning ahead allows you to make your own decision about who will be your medical care agent in the case of a durable power of attorney for health care or who will be entrusted to take responsibility for your financial affairs when you cannot do so for yourself.

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Can POA Supercede Spousal Rights?

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