How to Organize a Power of Attorney

By John Stevens J.D.

Generally, if an unexpected accident or sudden illness occurs, concerned family members cannot act on your behalf without the permission of a court. Through a power of attorney document, however, you can make important decisions ahead of time about who will represent you in this situation. Powers of attorney can appoint someone to act for you in financial matters or for medical purposes. Powers of attorney are governed by state law and requirements may vary somewhat throughout the states. However, the basic concepts are the same. You can often get fill-in-the-blank power of attorney forms from your state, or you can visit an online document provider that may offer services as a package.

Powers of Attorney in General

A power of attorney is a legal document that gives a person, called an “agent,” the right to act on behalf of the "principal" -- the person who granted the power. When creating your power of attorney, you will need to decide whether it will be a non-durable power of attorney, meaning your agent’s authority to act on your behalf will end automatically if you become incapacitated, or whether you want a durable power of attorney that continues even after the incapacity of the principal. Some states assume a power of attorney to be durable unless it specifically states otherwise, so you need to check the laws of your state when drafting yours.

Choosing Agents

Choosing an agent is probably the most important decision you will make when drafting your power of attorney. Whether it is designed for financial or medical purposes, the agent must be responsible, trustworthy and act in your best interests. Powers of attorney usually also list persons who will serve as backup agents in the event the first agent is unavailable. If the power of attorney document is durable, it should also list as much contact information as reasonably available for each agent. Such information commonly includes a home address, a home telephone number, a cell phone number and a work telephone number.

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Scope of Powers

You will need to decide how much power to grant your agent. The amount of power granted, often referred to as the “scope,” can be very specific, such as the power to access a certain bank account, or very broad to accommodate a wide variety of circumstances. For example, assume that a power of attorney document provides that your agent can access funds held within ABC bank, but you later move those funds to a different bank. In that case, your agent would have no legal access to the funds in the new bank, and a new power of attorney would need to be drafted to provide that access. If you included broader language, such as “the funds held in all of my financial institutions” or "the power to act on my behalf in all financial matters," your agent could still act, even though the funds had been moved to a new bank.

Medical Powers of Attorney

A medical power of attorney allows your agent to make medical decisions on your behalf when you are unable to do so. These could be end-of-life decisions, but it would also apply if you were unconscious or undergoing a medical procedure where you couldn't speak on your own behalf. Medical powers of attorney often include language advising your agent whether to keep you on life support or whether to consent to emergency care, hospitalization, surgery, therapy or any procedure to maintain, diagnose or treat a physical or mental condition. As principal, you can also specify which medical procedures you do or do not want. You could also include instructions on how to dispose of your remains, for example burial or cremation, and whether you wish to be an organ or tissue donor.

Signing the Power of Attorney

At a minimum, you must sign the power of attorney document before it takes effect. If you are unable to sign the document, another person may be able to sign the document on your behalf and at your direction, depending on state law. State law may also impose other requirements, such as a requirement that witnesses watch you sign the document or that you must sign the document before a notary public. Once the document is signed, you should deliver a copy of the document to each person named as an agent. If the power of attorney includes medical decisions, and if you have a primary care physician, you should also deliver a copy of the document to that physician.

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The Louisiana Statute on Durable Power of Attorney


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What Happens If an Agent With Power of Attorney Becomes Incompetent?

If handling your own financial affairs is a challenge, or you worry that you will not be able to manage your affairs in the future due to illness or loss of capacity, you have the right to designate another individual as your agent via a power-of-attorney agreement. An individual with power of attorney can pay bills, sign contracts and manage investments on your behalf. Should your agent become incompetent, however, your finances may be at risk.

Durable Power of Attorney and HIPAA

The federal Health Insurance Portability and Accountability Act of 1996, commonly known as "HIPAA," provides that a physician may not disclose a patient’s condition or the circumstances surrounding the patient’s care to a third party, with limited exceptions. This rule is designed to protect confidentiality; therefore, some doctors may be unwilling to share information about a patient's health, even if the patient designated an agent for health care under a durable power of attorney. As a result, your agent might be unable to act in your best interests. To guard against this possibility, include language in your durable power of attorney document that waives HIPAA confidentiality rights.

What Is Financial Power of Attorney Abuse?

When you, as a principal, create a power of attorney, you give your agent a significant amount of authority to conduct transactions on your behalf. Since your agent has so much authority, it may be easy for him to abuse the power of attorney to act in his own best interests rather than yours. However, state laws can provide protection against abuses, and you can incorporate safeguards into your power of attorney to help deter abuse.

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