Exploring the Different Types of Power of Attorney: Which One is Right for You?
A power of attorney is a useful tool for many as it gives the ability for someone else to act on your behalf. It is not to be taken lightly and the person appointed as agent must be trustworthy and reliable. As a notary public, I have seen these used in multiple ways. The following is for informational use and is not to be construed as legal advice.
The specific powers that are granted to an individual (or agent) under a power of attorney vary depending on the type of power of attorney and the language contained in the document. The best practice is to consult with an attorney and always review the document before signing it to make sure you understand the contents and the arrangements in the document and are comfortable with those arrangements.
First, it's important to know the difference between a durable power of attorney and a non-durable power of attorney:
Durable Power of Attorney (DPOA)
A durable power of attorney is designed to remain in force even after the principal loses the capacity to make decisions for themselves. This means that the agent appointed in the DPOA can continue to manage the principal's affairs, such as making financial transactions, handling medical decisions, and making property dispositions, even if the principal becomes incapacitated due to illness, injury, or other circumstances.
A durable power of attorney is generally recommended for anyone who wants to ensure that their affairs are handled in the event they become incapacitated. This is particularly important for older adults or those with pre-existing health conditions that could potentially lead to incapacitation.
Non-Durable Power of Attorney (POA)
A non-durable power of attorney ceases to be effective upon the principal's incapacitation. This means that the agent's authority to act on behalf of the principal is revoked as soon as the principal loses decision-making capacity.
A non-durable power of attorney is typically used for short-term planning, such as managing property during a temporary absence or handling specific transactions. It may also be used to give someone authority to make decisions about a particular situation in the principal's life, such as medical care or financial matters. I see these often while doing loan signings or estate planning documents.
The key difference between a durable power of attorney (DPOA) and a non-durable power of attorney (POA) lies in the continued effectiveness of the agent's authority after the principal becomes incapacitated.
Now, let's discuss some more detailed types of power of attorney.
There are several different types of power of attorney, each with its own specific purpose. Here are some of the most common types:
General power of attorney: This is the broadest type of power of attorney, and it gives your agent (also known as an attorney-in-fact) the power to act on your behalf for any matter that is not specifically excluded by the power of attorney. This includes matters such as managing your finances, paying your bills, and making decisions about your property.
Financial power of attorney: This type of power of attorney is more limited than a general power of attorney, and it only gives your agent the power to act on your behalf for financial matters. This includes matters such as managing your bank accounts, investing your money, and selling your property.
Healthcare power of attorney: This type of power of attorney gives your agent the power to make medical decisions on your behalf if you are unable to do so yourself. This includes matters such as consenting to medical treatment, making decisions about surgery, and withholding or withdrawing life support.
Springing power of attorney: This type of power of attorney only becomes effective if you become incapacitated. This means that your agent will not have any power to act on your behalf until you are unable to do so yourself.
In addition to these common types of power of attorney, there are also a number of specialized types of power of attorney that are designed for specific purposes. For example, there are power of attorneys for real estate transactions, power of attorneys for tax matters, and power of attorneys for immigration matters. Any power of attorney ceases upon the death of the principal.
If you are considering doing a durable general power of attorney with me as your notary public, I suggest making several copies. It has been my experience that many of the institutions that your agent will need the power of attorney will require an original and they do not return them. I do recommend consulting with an attorney. However, if a situation makes that impossible, you can utilize online sites such as Legal Zoom or you can purchase a kit from this link on Amazon.
As a notary public, I cannot notarize a power of attorney once the principal becomes incapacitated or is determined not to understand what he or she is signing. I have encountered situations where I've had to refuse to notarize for a principal. I would encourage folks to discuss these matters with their family and friends and have something in place before a complicated situation arises.
**I am not an attorney licensed to practice law and may not give legal advice about immigration or any other legal matter or accept fees for legal advice. The information contained above is for informational purposes only and is not to be construed as legal advice.**