Guidelines for Assuming Power of Attorney

By Elizabeth Rayne

Becoming an agent through a power of attorney is an important undertaking since it involves managing the affairs of another person. Several considerations must be taken into account by the principal when drafting a POA and limiting the actions an agent may take, including designating the triggering event for when the agent takes over the principal's affairs, the breadth of the agent's authority, and under what circumstances the agent's powers terminate.

Overview

A power of attorney is a legal document that authorizes a person, known as an agent, to carry out the affairs of another person, known as the principal. The principal may limit the extent of the agent's authority and the circumstances under which the agent may act. The principal may draft the POA to give broad authority or limit it to one type of transaction, such as banking, real estate or health care. For example, a POA may be limited to buying a house or filing taxes. Similarly, a POA may be limited to financial matters or it may allow an agent to make decisions about a principal's health care.

Springing Power of Attorney

While a principal may draft a POA so that it is immediately effective, another option is a springing POA. With the latter, the agent is not authorized to act until a specific event occurs, such as when the principal cannot be present for a certain transaction or becomes incapacitated. The POA may specify when the principal is considered to be incapacitated, which typically occurs when a doctor has determined that the principal is incompetent. Conversely, if the POA allows, an agent may simply sign an affidavit, stating that the principal is incompetent.

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Agent's Duties

In assuming power as an agent under a POA, you may only undertake duties assigned by the principal. The agent is limited to acting as provided under the POA, whether it be limited to specific transactions or to general financial, health care or end-of-life duties. Moreover, as an agent, you must maintain records of all transactions you complete for the principal, and you must always act in good faith. Certain actions may be prohibited by state law, such as making gifts to anyone with the principal's property.

Termination

A POA may be terminated for a number of reasons. The agreement is voluntary, meaning that the principal may revoke the POA at any time when she is lucid and of sound mind. Moreover, a POA is automatically terminated when the principal dies or at a time specified in the agreement. A principal may specify that an agent's authority ends after a certain transaction is complete, or if the principal becomes incapacitated. If the principal is your spouse, a POA may automatically end upon filing for divorce.

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Can a Power of Attorney Be Non-Durable & Non-Revocable at the Same Time?

References

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