A power of attorney (POA) is legal documentation in which the individual signing the document, called the “principal,” authorizes another individual, called the “agent,” to act in their name. The power given to the agent is provided in the conditions of the document.
A power of attorney is distinguishable from conservatorships, or guardianships, in which a judge designates an individual to act on the principal’s behalf. One clear benefit of a power of attorney is that it is carried out privately, without the court’s involvement. The POA also enables the principal to choose the agent.
For a power of attorney to be legally valid, the principal needs have mental competence. Without mental competence, the principal not able to carry out a power of attorney.
It is critical that parties carryout a power of attorney as soon as they can. Delaying could mean it is too late to carryout a power of attorney. Consequently, family members might be forced to request a conservatorship from a court.
Types of Power of Attorney
The term “power of attorney” is used generally and is rather superficial. Different types and categories of power of attorney are present. Types have to do with areas over which the power is given, and they comprise of general, healthcare, specific, and financial. Categories deals with when the power is given and its degree. These comprise of durable, conventional, and springing. Each power of attorney is influenced differently by debilitation. Bear in mind though, that each type and category of a POA concludes on the passing away of the principal.
Incapacity and Conventional Power of Attorney
A conventional POA is usually used for a limited purpose—to aid the principal in a particular duty or day to day activities. A conventional POA concludes when the principal turns incapacitated. It is not designed to provide for the requirements of the principal following incapacitation. A conventional POA could result in the requirement for a conservatorship down the road.
Incapacity and Durable Power of Attorney
A correctly devised and carried out durable power of attorney stays in effect following the principal becoming incapacitated —it is intended to fulfill the requirements of the principal even following incapacitation. It avoids the potential of a conservatorship in the future.
Incapacity and Springing Power of Attorney
A springing POA is a kind of durable POA that becomes in effect when a “springing” event happens, as described by the terms of the document. Often, the springing event is the principal’s incapacitation. In that situation, the power of attorney becomes effective and stays in effect following the principal becoming incapacitated. Springing powers of attorney are beneficial to avoid the potential of a conservatorship down the road and to have a power of attorney in place only as long as it’s required.
Power of Attorney and Incapacitation
A durable POA enables members of the family to make decisions concerning the care for a loved one in private following incapacitation. Nevertheless, a principal carrying out a power of attorney needs to have capability to carry out the document. Following an individual being incapacitated, the family need to utilize the courts and acquire a conservatorship. Discussing carrying out a power of attorney with a loved one may be cumbersome, but it is much easier than retaining a lawyer and heading to court to pursue a conservatorship.
Olson, J. (2018, May 20). What is needed for the power of attorney when a spouse is incapacitated? LegalZoom. https://info.legalzoom.com/article/what-needed-power-attorney-when-spouse-incapacitated.
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Regardless of the choice you make, it’s important you make the best choice for you when hiring an attorney. Remember: The decisions you make now can affect your future. Ultimately, choosing the best lawyer will depend on which lawyer feels best for you and your situation.