A power of attorney (POA) is an estate planning tool where you appoint a person, known as the agent, to manage your affairs. Typically, the POA is appointed to manage financial or medical matters when you cannot do so yourself because you are incapacitated by illness or injury.
People are often confused, however, as to when and which type of POA is needed. At JCloud Law, P.C., our estate planning attorney will listen to your concerns and needs, review your estate, and advise you on which POA is best for you and your unique situation. Contact us at 480-378-3543 / 858-299-0440 to schedule a free 15-minute consultation and learn more about how and why a POA can complement your estate plan.
In Arizona there are four Power of Attorney documents that are essential to every estate plan. These documents are critical to ensuring that if something happens and you are unable to make your own healthcare or financial decisions‚ you have designated a person to act on your behalf‚ or you have already made the decisions through the documents and the treating physicians must honor your previous decisions. These documents include a Living Will (also known as an Advance Healthcare Directive)‚ a Healthcare Power of Attorney‚ a Mental Healthcare Power of Attorney‚ and a Financial Power of Attorney.
In California there are typically two Power of Attorney documents that are essential to every estate plan. These documents include an Advance Healthcare Directive and a Financial Power of Attorney.
What Constitutes a Power of Attorney?
A power of attorney is the legal authorization for one person, the agent, to act on behalf of another person, the principal. Often called a letter of attorney or just a "POA", they are a common element of estate planning as they let a person who is losing their ability to manage their own affairs choose someone they trust to make decisions for them.
There are six types of POAs, described below.
1. Durable POA
A durable POA takes effect immediately upon your signature unless the POA states otherwise and allows your agent to continue acting on your behalf even when you are incapacitated. A durable POA terminates only when you die or when a revocation of a POA form is issued.
2. Non-durable POA
A non-durable POA takes effect immediately upon your signature unless the POA states otherwise. It does not allow your agent to continue acting on your behalf when you become incapacitated. In the latter scenario, only a court-appointed guardian or conservator can make decisions on your behalf.
3. Medical / Mental Health POA
A medical POA is sometimes referred to as an advance directive because it allows you to appoint a healthcare agent to make medical decisions for you when you cannot do so. It is limited by your specific medical preferences and any other directive you may have as part of your estate plan, like a living will or a Do Not Resuscitate (DNR) form.
4. General POA
A general POA allocates broad powers to the agent to act on financial, business, real estate, and legal matters. This POA is limited only by the terms set out in the POA or by any relevant state statute.
5. Limited (Special) POA
A limited (Special) POA allows the agent to act for a specific purpose and once that purpose is accomplished, the POA expires.
6. Springing POA
A springing POA takes effect if/when a certain event or medical condition occurs as specified in the POA. It ends at a specified time as outlined in the POA or if/when you become incapacitated or die.
When is a Power of Attorney Necessary?
A power of attorney is a useful tool for people who are planning their estate but who are losing the ability to understand the repercussions of their decisions and actions. By giving an agent the power to make those decisions, a principal can rest assured that someone is taking care of them.
A POA is common in the following situations:
- The principal suffers from a worsening medical condition that impacts their mental capacity, like Alzheimer's or dementia
- The principal is physically disabled and cannot sign important documents
- The principal wants to give someone else the power to make specific decisions on their behalf
There are, of course, other reasons why you may need or want a power of attorney created. Speaking to an estate planning attorney is the best way for you to identify and determine what will work best for you.
How is a Power of Attorney Created?
Each state has its own requirements for creating a power of attorney, though most are based on the parties and witnesses signing a power of attorney form. Because having the power to make financial and medical decisions for someone else is such a serious matter, each state incorporates formalities that must be followed to:
- Ensure the power of attorney is legitimate; and
- Confirm the person relinquishing their rights is doing it knowingly and voluntarily.
Many states require a witness along with notarization. Contact us to find out exactly what the process is so that you don't make mistakes that could prompt delays or problems.
Challenges to a POA
A family member or another close person is usually listed as the power of attorney. Sometimes, problems or conflict arises, leading to another family member disputing the POA. There are three possible ways to challenge a POA.
- The principal is mentally incompetent. The principal of the POA is the one who grants a power of attorney, and the principal gets to choose who that POA is. If a family member wants to revoke or contest the POA, then proving the principal was mentally incompetent (e.g., has dementia, a psychiatric issue, or another form of mental incapacity) is one way it might be done. This type of dispute is often determined by the winner of the battle of the experts.
- Formalities were not followed. POAs require a number of formalities, which vary by state. Failure to follow or satisfy the formalities can mean the POA is invalid. You want to look out for specific language that's required by state law, signature and witness requirements, and notarization requirements.
- Agent abused authority. Agents are the ones chosen by the principal to act as their POA. When an agent abuses this authority, a POA can be challenged. Examples of abuse include stealing the principal's assets, mismanaging assets, or neglecting the principal's needs altogether. This type of dispute can be difficult to prove because often it's a matter of he-said, she-said.
Having an attorney to help you with the POA is one way to help prevent disputes in the future.
Contact an Estate Planning Lawyer in Arizona & California Today
Powers of attorney are powerful tools to make sure your finances and other business or personal matters are properly managed while you are incapacitated or otherwise unable to oversee them yourself. You can speak to an estate planning attorney at JCloud Law, P.C. to discuss estate planning generally and powers of attorney as part of the estate plan specifically.
We always believe that our clients make better choices for themselves and their loved ones when they are well-informed and adequately prepared. Contact us directly at 480-378-3543 / 858-299-0440 or online today to schedule a free 15-minute consultation.