Power of Attorney (POA): Durable, Medical, Financial

What is a power of attorney?

A power of attorney is a legal document giving someone (the "agent" or “attorney in fact”) the authority to make legal, financial or medical decisions for someone else (the “principal”). Designating a power of attorney can ensure someone has permission to manage your affairs if you become temporarily or permanently incapacitated.

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How does a power of attorney work?

• You can typically choose any adult

  — including a spouse, adult child, sibling or even a trusted friend — to act as your legal agent under power of attorney.

• An agent has a

  fiduciary

  duty

  , meaning they’re legally bound to make decisions in the principal’s best interest.

• You can give one person power of attorney or split the responsibilities

  among multiple people, which is called dual power of attorney.

• Consider naming a backup

  , called a successor agent, if your primary agent is unavailable.

• Power of attorney laws can differ from state to state,

  so check your state’s rules before drafting your document.

How to get power of attorney

Power of attorney requirements differ from state to state. Typically, you’ll need to get a power of attorney form that’s valid in your state and fill out the specific terms of your agreement. Depending on the state, you may need to have your documents notarized or signed by a witness.

Many online estate planning software providers have state-specific power of attorney forms available to download. See specific instructions for creating a valid power of attorney in these states:

• California

• Florida

• Indiana

• Texas

• Maryland

• New York

• Washington

What happens if I don’t have a power of attorney?

Most states recognize your spouseas a medical decision-maker if you become incapacitated and don’t have a medical power of attorney in place. Your parents or adult children may be contacted if you don't have a spouse.

In extreme cases, if you don't have an agent and become incapable of managing your personal or medical affairs, a court could appoint a conservator to make decisions for you. Court intervention can be public, and although the conservator is required to act in your best interest, there's no guarantee that a conservator would act as you wish.

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What decisions cannot be made by a power of attorney?

A power of attorney cannot do these things:

• Choose a replacement for themself or transfer POA power to someone else.

• Make changes to your will.

• Make decisions on your behalf after you die.

• Make decisions outside the scope of the agreement if the POA is limited.

Who can override a power of attorney?

• The principal

  can revoke or change a power of attorney designation if they’re of sound mind.

• The principal’s incapacity

  ends a nondurable power of attorney but not a durable power of attorney.

• The principal’s death

  ends all power of attorney designations. An estate executor takes over responsibilities related to their will and property distribution.

• A court decree

  can invalidate a power of attorney designation if the court finds that the agent is not fit to serve. Someone in the principal’s life who is concerned about neglect or exploitation, for example, may challenge a power of attorney designation in court.

• Change in circumstances,

  such as divorce, in some states, can remove a former spouse’s automatic power of attorney.

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Types of power of attorney

A power of attorney designation can be used for financial or medical decisions. Each requires a separate document. From there, either type (financial or medical) can be made durable or springing/limited, and can be assigned to one agent or be made dual.

1. Medical or financial power of attorney

Medical or health care power of attorney

A medical power of attorney, also called a health care proxy, is a type of advance directive that gives someone the authority to make health care decisions for you according to your wishes, including religious and moral beliefs, when you cannot do so.

Health care proxy decisions generally cover any medical treatment or procedure to diagnose and treat your condition. Make sure the person to whom you grant medical power of attorney understands the decisions you want to be made in connection with different types of treatment .

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Financial power of attorney

A financial power of attorney gives someone the authority to handle your financial affairs. These can include everyday tasks, such as banking transactions, and more complex moves, such as transferring property into a trust.

The financial matters you can authorize them to handle may include things such as:

• Distribution of assets to cover daily expenses.

• Real and personal property transactions.

• Stock, bond or other securities trades.

• Banking duties.

• Business operations.

• Insurance and annuity transactions.

• Estate, trust and other beneficiary needs.

• Legal claims and other litigation.

• Retirement benefits payments.

• Tax filing.

• Charitable contributions.

• Handling of government benefits, including Social Security, Medicare or unemployment compensation.

2. Durable power of attorney or limited/springing power of attorney

Durable power of attorney

A durable power of attorney stays intact if you’re mentally incapacitated (you’re under anesthesia or fall into a coma, for example), while an ordinary power of attorney designation ends if you become incapacitated.

Making a power of attorney durable can prevent you from being placed under a conservatorship or guardianship if you become incapacitated. With some exceptions, your power of attorney should usually be designated as durable so it remains in effect during an emergency.

Limited, special or springing power of attorney

A limited power of attorney allows your agent to perform only activities you outline, typically for financial matters. For example, you could authorize someone to execute documents in your name to sell your home or manage your taxes for a specific time period.

You can set up a limited power of attorney to take effect after a specified event occurs, such as your incapacity. This is called a springing power of attorney. If the specified event is medical, however, your agent may have to wait until your doctors decide you’re unable to handle your own affairs before they can act, which may not take effect as soon as you would want.

3. Dual power of attorney

Dual power of attorney, also called joint power of attorney or “power of attorney with dual agents,” gives power to two people and requires that both agents sign off on any decisions. Appointing dual agents can balance the burden on each person, though courts wil hold both legally accountable if necessary.

A dual power of attorney might be helpful if you have two children, for example, who would like to make joint decisions in your stead. However, this arrangement can be risky, especially if the two agents disagree on important issues. If disagreements arise, a judge might have to make the final decision, which could delay essential medical treatments.

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