POWER OF ATTORNEY
EXPLORING THE BASICS
TERMINOLOGY YOU SHOULD KNOW
WHAT IS A POWER OF ATTORNEY?
TYPES OF POWER OF ATTORNEY
POWER OF ATTORNEY vs GUARDIANSHIP
An individual who creates a Power of Attorney is known as the Principal, or Grantor, or Donor. The Principal grants specific (or general) powers to another individual who is called the Attorney in Fact or Agent.
Power of Attorney is a legal document that extends authority and powers to conduct activities on the behalf of another individual. Most people interact with this concept as a parent gets older and is unable to facilitate certain aspects of their life. Many people believe that an Attorney-In-Fact must be a licensed attorney. While this is not true, a licensed attorney can help you prepare your Power of Attorney documentation.
There are typically four types of Power of Attorney. An individual should consult with a qualified attorney to help them determine which type fits their specific needs.
A Non-Durable (or Limited) Power of Attorney extends limited authority to achieve specific goals. An individual might use a non durable power of attorney for a particular transaction that they cannot attend to personally. The principal can revoke the power of attorney at any time.
A non-durable power of attorney automatically terminates if the Principal becomes incapacitated.
A Durable (or General) Power of Attorney extends much broader authority to the Agent, often covering many aspects of the Principal's affairs. An individual might use a durable power of attorney to manage bank accounts, sell property, or even enter into contracts on behalf of the Principal. Many elderly individuals utilize a durable power of attorney to protect their quality of life as normal facilities begin to diminish over time.
A durable power of attorney does not automatically terminate if the Principal becomes incapacitated.
A Medical Power of Attorney limits authority to healthcare and medical decisions. It is a type of durable power of attorney, allowing the Agent to make decisions even in the event of incapacity. However, a general durable power of attorney does not always have authority to make medical decisions. It is important to consult with a qualified attorney to ensure your documents are prepared with the proper wording.
A Springing Power of Attorney extends either durable (or) non durable authority at a future date or during a specific event. Among other things, this power of attorney could be triggered by things like incapacity or unavailability to attend to a specific event.
There are many subtle (and some major) differences between a Power of Attorney and a Guardianship Directive. An attorney can help you navigate all of the subtle differences that might inform an educated decision and assessment. However, here are two major differences.
The Principal can revoke Power of Attorney at any time. Inversely, active guardianship cannot be revoked by the Ward.
A Principal does not lose their authority to make qualifying life decisions. A Ward is unable to retain their legal authority over qualifying aspects of their circumstances.
Example. John grants Donald a Durable Power of Attorney over his bank accounts. John (as Principal) does not lose his authority to deposit/withdraw funds/terminate his bank accounts.
Example (2). John creates a Written Guardianship Directive that Donald will take over his financial affairs if he becomes incapacitated. John subsequently suffers a head trauma, triggering the court to appoint Donald as guardian of John's finances. John has drastically less (if any) control over his bank accounts.