Power of Attorney

A Power of Attorney is your authorization, given to another person, to act on your behalf.  In practice, there are several specific Powers of Attorney to choose from, each accomplishing a particular purpose.  From these, there are two forms most commonly completed at the same time as your will. The exact requirements for the appointment of your Power of Attorney may change from jurisdiction to jurisdiction, but the intent stays much the same.

The first is a Power of Attorney for personal health care in which you appoint the person you wish to be responsible for your health care decisions if you become incapacitated.  This is where you may make your wishes known as to what health care and medical services you would or would not like to have performed when you are unable to speak for yourself.  It’s easiest for someone who knows you well, and with whom you have discussed the topic, to make the decisions that could be required.

The second is a durable or continuing general Power of Attorney in which you grant another person the power to control your affairs as if they were you. It becomes effective immediately, and only ceases at the time of your death.  A durable or continuing General Power of Attorney is a very powerful document.

That being said, a durable or continuing Power of Attorney is a useful thing to have on hand.  It means that the person named (usually your spouse or other immediate family member) in the document may conduct all of your affairs as if they were you.  Consider what would happen if you unexpectedly became incapable of making coherent decisions or even signing your own name.  Could anyone access your bank accounts?  How would your bills be paid?  Any property that you control is now in limbo.  To gain access to your assets someone must petition a court to grant the right to administer your affairs, which can be a prohibitively costly procedure.  On the other hand, this Power of Attorney conveys an awful lot of control to someone else’s keeping, so choose wisely.

Also available in some jurisdictions is a General Power of Attorney which does not take effect until you are incapacitated, which, at first blush, seems the perfect thing to have.  However, incapacitation must be proven, and avoiding the need for expensive court intervention is a big part of the reason to have a Power of Attorney in the first place.

A Power of Attorney can be revoked at any time by following the procedure specified by your jurisdiction.  By the same token, a person appointed to be a Power of Attorney might decline the appointment when the time comes, or having accepted, may become unable or unwilling to continue to act over a lengthy period of time.  For this reason it is prudent to appoint at least one alternate choice.  Two or more individuals may be appointed jointly, meaning that they must act together and only if all parties are in agreement, or severally, meaning that each may act independently without the approval of the other.  The same individuals you have named as executor/executrix and alternate choices in your Will are excellent candidates for the role of your Power of Attorney.

Power of Attorney documents are commonly completed at the same time as the making of your Will and may be available as a part of a Last Will and Testament package deal from your lawyer.  An awareness of some of your options beforehand helps you to ask the right questions, better understand the answers, and allows you to make informed decisions.