A power of attorney is a legal document in which a person (the principal) designates and authorizes another person (the agent or attorney-in-fact) to transact business or make certain decisions on his or her behalf. When a power of attorney is in effect, the agent essentially steps into the shoes of the principal and makes decisions that are legally binding on the principal. Powers of attorney can grant broad, general authority (known as a general power of attorney) or they can limit the attorney-in-fact’s power to act on behalf of the principal to particular situations (known as a special power of attorney). Because there are many different types of powers of attorney available to address a variety of situations, powers of attorney are extremely useful estate planning tools. If you are interested in drafting a power of attorney, contact our firm to schedule a consultation with an estate planning attorney.
Durable Powers of Attorney
In general, the authority granted under a power of attorney terminates upon the death or incapacity of the principal. On the other hand, a durable power of attorney remains in effect or becomes effective if the principal becomes incapacitated or mentally incompetent. Because a durable power of attorney remains in effect during the principal’s incapacity or becomes effective only if the principal becomes incapacitated, a person can sign a durable power of attorney to prepare for the possibility that he or she may become unable to manage his or her financial, medical or other affairs.
Powers of Attorney for Medical Care
A power of attorney for healthcare (also called a medical directive, an advance directive, a physician’s directive, a written directive or a durable power of attorney for healthcare) allows a person to grant another person the authority to make healthcare decisions on his or her behalf while he or she is unconscious or if he or she becomes mentally incompetent or otherwise incapacitated. A health care proxy (also called a proxy directive) is a legal document by which a person designates another person to make healthcare decisions regardless of his or her incapacity.
Another estate planning tool authorized by law in many jurisdictions is a living will. A living will (also called a declaration of a desire for a natural death or a directive to physicians) allows a person who is unconscious or incapacitated to express his or her desires regarding the use of extraordinary measures to extend his or her life when there is no reasonable expectation that he or she will regain consciousness or recover.
Even if you have a legally enforceable power of attorney for healthcare, health care proxy or living will, your should discuss fully your preferences regarding medical care with the person or persons you have designated to make healthcare decisions on your behalf.
Powers of Attorney for Financial or Property Transactions
A power of attorney can also be used by a person to grant another person the authority to manage his or her finances, buy or sell property, file tax returns or handle other legal transactions on his or her behalf. However, there are a few powers that a person may not typically delegate to his or her agent. For example, a person may not legally authorize his or her agent to prepare a will, vote or seek a divorce on his or her behalf.