Power of Attorney

Introduction

A Power of Attorney is a document that lets you nominate someone to make financial and other decisions on your behalf. This appointment can take effect immediately, or it can take effect only if you are unable to make those decisions on your own. For example, if you become mentally incapacitated, or if you are leaving the country for a while, you would be unable to make these important choices for yourself. 

A Power of Attorney that continues to be in effect even if you become mentally incapacitated is known as a Durable Power of Attorney. Having a Durable Power of Attorney stops the court from stepping in and taking control of your finances. Without a Durable Power of Attorney, the court would appoint someone to make decisions for you. 

Certified Document Solutions makes protecting yourself and your finances easy. By answering a few quick questions, we will generate a power of attorney specially tailored to your needs and wishes, one that will be valid in all 50 states. In just a short time, you will have the security of knowing that someone you trust - not the court - is able to make decisions for you when you are not.

 

Authorities for Durable Powers of Attorney

You can give your agent, known as the "Attorney-in-Fact", as many or as few powers you choose. Specifically, a power of attorney might authorize your agent to do any or all of the following on your behalf:

  • Pay for support and care
  • Borrow money
  • Conduct banking transactions
  • Deal with property
  • Handle legal claims
  • Gain entry to safety deposit boxes
  • Deal with insurance and retirement benefits
  • Prepare and file tax returns
  • Exercise stock holder rights
  • Contract for services
  • Make gifts
  • Collect social security benefits
  • Or any other task you require.

This Power of Attorney allows you to specify which powers you wish to give to your agent, when it takes effect and even allows you to provide customized special powers.

 

Legal Requirements

There are only two primary requirements for a Power of Attorney:

1.     Soundness of Mind: The person signing the power of attorney cannot be mentally ill or disabled. In addition, the person must be acting on his or her own free will, without undue influence from others.

2.     Witnesses: In most states, you must have at least two people, not related to you or each other, to witness you signing the power of attorney.

Other than those two requirements, in some states, such as North Carolina and South Carolina, you must record the power of attorney with the county recorder's office. Your power of attorney will come with final instructions specific to your state to make your document legally valid.

 

Married Couples

You should not assume that your spouse will automatically be legally allowed to manage your finances if you are unable to do so. Your spouse does have some rights over property you own together, such as joint bank accounts. However, there are significant restrictions on selling property. Typically, both spouses must sign in order to sell property owned together. Because an incapacitated spouse cannot consent, the transaction can be held up. 

If property is owned by only you, your spouse has no legal authority to sell or manage that property without a Power of Attorney. A Power of Attorney giving rights to a spouse oftentimes makes transactions easier and cost-efficient. Your Power of Attorney allows you to provide general and specific powers to your spouse.

 

Start Date

A Durable Power of Attorney can be drafted so that it goes into effect as soon as you sign it. Alternately, you can specify that the Power of Attorney does not go into effect unless a doctor certifies that you have become incapacitated. This is called a “Springing” Power of Attorney. It allows you to keep control over your affairs unless and until you become incapacitated.

 

End Date

You have a choice of when the Power of Attorney ends. It could end either if you become mentally incapacitated, or with a Durable Power of Attorney, it can continue until death. That means that you cannot give your agent authority to handle things after your death, such as paying debts, making funeral or burial arrangements or transferring your property to the people who inherit it. A Last Will and Testament addresses those issues. 

Your Durable Power of Attorney also ends if:

  • You revoke it. As long as you are mentally competent, you can revoke a durable power of attorney at anytime.
  • A court invalidates your document. This rarely happens, but a court may declare that you were mentally incompetent when you signed it, or that you were the victim of fraud.
  • You get a divorce. In a handful of states, such as Alabama, California, Colorado, Illinois, Indiana, Minnesota, Missouri, Pennsylvania, Texas and Wisconsin, if your spouse is your agent, your ex-spouse’s authority is automatically terminated.

Revocation

As long as you are mentally competent you can revoke your power of attorney. The revocation should be in writing, and it should be delivered to the agent and to third parties with whom the agent is dealing with (for example, your bank).

 

Health Care Decisions

A Durable Power of Attorney only lets your agent make financial decisions for you. If you would like your agent to make health care decisions for you in case you are unable to make those decisions on your own (such as whether or not to be kept on life support), then you will need another document. This document is known as a Living Will, or sometimes referred to as a Health Care Power of Attorney.

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Certified Document Services (CDS) prepares legal documents for non-lawyers in their own legal actions. CDS offers no legal advice, recommendations, mediation or counseling under any circumstance. CDS are not Lawyers, are not employed by a Lawyer, cannot give any legal advice and our employees are not acting as your Attorney. CDS can give you general factual information pertaining to legal rights, procedures or options available to you in a legal matter when you are not represented by an attorney. CDS cannot give you specific advice, opinions or recommendations about your legal rights, remedies, defenses, or strategies.