Frequently Asked Questions About Power of Attorney

Power of attorney is a legally binding document in which the grantor gives another person authorization to make decisions on their behalf. There are a number circumstances in which power of attorneys are useful, such as when the grantor is medically incapacitated, incarcerated, not of sound mind, or if the grantor simply wants the security of having someone else make their decisions. Today we’re going take a closer look at this process, revealing some common questions and answers related to power of attorneys.

questionsWhat is a Durable Power of Attorney?

Standard power of attorneys become null/void if the grantor becomes physically or mentally incapacitated. The courts view such circumstances as the grantor not having the power to give someone the decision-making authority of their affairs; thus, the power of attorney is canceled. With a durable power of attorney, however, the attorney-in-fact maintains his or her power even if the grantor becomes  physically or mentally incapacitated.

What is a Healthcare Power of Attorney?

Some people assume that a durable power of attorney and healthcare power of attorney are the same, but this isn’t entirely true. Granted, they are both used to authorize a person to make decisions on behalf of the grantor if he or she becomes mentally and/or physically incapacitated, but there’s one major difference between them that shouldn’t go unnoticed. A healthcare power of attorney is used strictly for medical/health-related decisions, whereas a durable power of attorney can be used for all decisions, medical and otherwise.

What is a Springing Power of Attorney?

A springing power of attorney is unique in the sense that it only takes effect when a specific event or condition is met. Such documents are a bit more difficult to draft since the grantor must carefully choose their wording so the authorization is passed at the right time.

When Will a Power of Attorney Take Effect?

Generally, a power of attorney will take effect immediately after it is signed, witnessed and notarized (if applicable). This, of course, is assuming it’s not a springing power of attorney, which takes effect after a specific event.

Can I Revoke a Power of Attorney?

The short answer is yes, you can revoke a power of attorney. In order to do so, however, you must create a revocation request in writing, giving a copy to all third parties with whom you or the agent do business. Depending on where the power of attorney was filed, you may also be required to submit a revocation request to the County Recorder.

Who Can Use a Power of Attorney?

In order to use a power of attorney – either as a grantor or the agent/attorney-in-fact – you must abide by your state’s laws. Most states have basic requirements for power of attorneys, such as being an adult who is 18 years of age or older; and being of sound mind.

Do I Lose Control Over My Money By Using a Power of Attorney

If you create a power of attorney to give someone authorization over you decisions, you still have full control over your finances and property. The agent/attorney-in-fact will then have access to your finances (unless specified in the power of attorney), but he or she can’t touch your money without your knowledge or permission.

Do I Need a Lawyer To Create a Power of Attorney?

It’ a common assumption that power of attorney documents require the expertise of a board-certified lawyer. Granted, the process can be somewhat daunting for individuals who have never engaged in such acts, but there’s no rule – written or otherwise – saying that you must hire a lawyer. As long as your power of attorney is simple, you can usually find a pre-made template to fill out and file, at which point you can authorize another person to make decisions on your behalf.

Does a Power of Attorney Document Require Notarization?

Whether you are looking to authorize someone to make decisions on your behalf, or if you are accepting authorization from another individual, you should check with your respective state’s laws regarding power of attorney documents and how they are executed.

The legal experts at LegalZoom explained the nuances of power of attorney notarization by saying most states’ laws regarding this procedure can be broken into the following categories: “…states that require the principal’s signature to be notarized; states that do not require a notarized signature, but require one or two witnesses to sign the document; states that give the option of using a notarized signature or witness signatures; or a state that requires both witnesses and a notarized signature.

Keep in mind that if you live in a state that requires power of attorney documents to be witnesses and notarized, you’ll need to find a willing witness to observe its execution. Notary publics are often allowed to act as witnesses, but only if they do not notarize the document. So in other words, don’t expect the notary public to both witness and notarize your power of attorney document. It’s your responsibility to find a witness when having this document notarized by a state-appointed notary public.


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