If you are planning your estate or require someone to manage important financial or legal affairs for you while you are away, a power of attorney is an important legal document to have. If you don’t have one in place yet, now is a perfect time to get one—the laws in many states have been altered to reflect a constant standard. If you presently have a power of attorney, confirm if your state has altered the laws and update your power of attorney to include the up-to-date best practices.
A power of attorney is important documentation for each person to have. If you carry out business in a different state, for instance, a power of attorney can give the individual you designate the legal authority to represent you in business, financial or legal affairs. Additionally, should anything ever happen to you in which you are cannot manage your personal financial or legal affairs, a power of attorney can give an individual you trust the authority to make decisions for you. Without it, should you become incapacitated, the courts are able to take over your finances.
In any case, a power of attorney is an invaluable protective tool to have in place in case you require it. The document is adaptable and can be created to meet your specific requirements. It can be carried out immediately or only when you cannot manage your matters on your own.
However, even when you have a power of attorney in order, it is important to review it regularly, and potentially replace it with a newer power of attorney. This could be the consequence of a modification in state law, designating a new individual to assist you when necessary, or adding or deleting powers from your document.
Power of Attorney Legally Defined
The Uniform Power of Attorney Act defines a power of attorney as a “writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used.” The agent is the individual given authority to act for the principal. The principal is the person that gives authority to the agent.
Powers of attorney can be carried out instantly, or only if the principal is incapacitated. Incapacitation means the principal cannot receive and assess information or convey decisions due to mental or physical impairment. It can also mean that the principal is inaccessible or detained, including incarceration, or is abroad and is unable to return.
Ensuring a Uniform Power of Attorney
The initial Uniform Durable Power of Attorney Act, which was last changed in 1987, was largely endorsed by most jurisdictions across the US. But a lot of states passed non-uniform contingencies to deal with particular issues that the initial act did not address. Some of the variances included:
- the power of multiple agents
- the power of a later-designated fiduciary or guardian
- the effect of annulment or divorce of the principal’s marriage to the agent
- initiation of contingent powers
- the power to make gifts
- principles for agent behavior and liability
Following a drawn-out process of review and a nationwide survey, the Uniform Law Commissioners devised a new Uniform Power of Attorney Act in 2006 to classify legislative trends and common best practices to both safeguard an incapacitated principal and retain a principal’s freedom to decide the extent of an agent’s power and the principles that govern their behavior.
Not all states have endorsed the new Uniform Power of Attorney Act, so there are variances in definitions and what is covered among states. According to the Uniform Law Commission website, Colorado, Idaho, Nevada, Maine, and New Mexico endorsed the Act prior to 2010. In 2010, Virginia, Maryland, the US Virgin Islands, and Wisconsin endorsed the act. If you reside in one of these states and had a power of attorney in place before 2010, it might be required to be updated. There is ongoing legislation in Minnesota, West Virginia, and Ohio. If the legislation goes through and you reside in one of those states, you might need to update your power of attorney.
Some of the requirements to be aware of in those states that have endorsed the Uniform Act are those that:
- Remember that an agent that imparts care, ability and attentiveness for the best interest of the principal is not solely liable since they also benefit from the act or has contrasting interests.
- Allow a principal to include in the power of attorney an amnesty provision for the agent’s benefit.
- Offer ways for the agent to give notice of stepping down should the principal be incapacitated.
- Offer broad safeguards for the good intention acceptance or refusal of an recognized power of attorney.
- Acknowledged portability of powers of attorney validly devised in other states.
- Provide an additional protective measure for the principal by offer that third persons might decline the power when they have the belief that “the principal may be subject to physical or financial abuse, neglect, exploitation or abandonment by the agent or person acting for or with the agent, make a report to the appropriate adult protective service agency.”
With the coming of the new year, now is a perfect time to get organized and make sure that any required legal documents, such as your power of attorney, are up to date.
Lisa C. Johnson, E. (2022, June 10). Should your power of attorney be updated? LegalZoom. Retrieved June 14, 2022, from https://www.legalzoom.com/articles/should-your-power-of-attorney-be-updated
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