Do-It-Yourself Power of Attorney

By David Carnes

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.

Parties

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.

Content

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.

Ready to appoint a power of attorney? Get Started Now

Execution

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.

Gift Riders

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.

Ready to appoint a power of attorney? Get Started Now
Can a Person With Power of Attorney for Another Profit From the Sale of a House?
 

References

Related articles

Uniform Power of Attorney Act

A uniform law is a proposed law drafted by the National Conference of Commissioners on Uniform State Laws, a private organization. A uniform law becomes effective only when state legislatures adopt it. As of 2011, every U.S. state except Louisiana has enacted the Uniform Power of Attorney Act, drafted in 2006.

Penalty for Taking Advantage of Power of Attorney

A power of attorney is a legal status given to an agent by a principal. Under a power of attorney, an agent is able to engage in legally binding conduct on behalf of the principal including buying and selling real estate, making investments, managing assets or entering into contracts. If the agent takes advantage of his power of attorney, he could face civil penalties including restitution of lost money or a judgment for damages and fees. Conduct amounting to a crime could result in incarceration or significant criminal fines.

Abuse of a Power of Attorney for an Incapacitated Family Member

A power of attorney is a legal expression of trust where a principal grants an agent the ability to legally act on her behalf. This may mean that the agent, otherwise known as the attorney-in-fact, can sell the principal’s assets or bind him to contracts. The power of an agent is even greater when she acts for an incapacitated family member. Abuse of that power is not just something that the agent can be sued for; it is also a crime. Powers of attorney are governed by state law, so standards may vary. There is an attempt to make standards regarding power of attorney consistent by getting all states to adopt the Uniform Power of Attorney Act. However, only 13 states have adopted the Uniform Act as of September 2012.

Related articles

Power of Attorney Rules

A power of attorney is a legal relationship in which one person (the principal) grants another party (the agent) the ...

Laws of Tennessee Power of Attorney

A power of attorney allows an agent to make medical or financial decisions on behalf of a principal, subject to the ...

Can a Power of Attorney Be Revoked by a Mentally Incompetent Principal?

Power of attorney is one of several legal mechanisms designed to protect a person's legal interests. A durable power of ...

How to Grant a Power of Attorney

A power of attorney is a legal document in which a person, known as the principal, authorizes legal authority to ...

Browse by category
Ready to Begin? GET STARTED