There are numerous misconceptions about powers of attorney — you can thank television for that! Legal experts and professionals routinely cite clients who will call up and explain that their elderly parent is now no longer competent. It’s at this point that they want to know one very crucial thing: “Can you do a power of attorney and living trust for my parent?” This is a reversal of the legal process for lifetime planning, and it shows how few people truly understand what a power of attorney is — and what it is not.
Powers of attorney, as legal documents, are about authority and protection. Only a mentally competent individual can appoint a “POA” for themselves. Once they are incapacitated or mentally incapable of making decisions, they cannot execute legal documents. In other words, it’s just too late. Of course, families find this frustrating, and when they realize the backward nature of their approach, it can feel ironic. Once aging family members lack legal capacity, they can’t use the very documents intended to address their eventual incapacity.
When it comes to powers of attorney, you can never be too early — but your circumstance can very easily make you too late.
What Is a Power of Attorney?
If you don’t know what a power of attorney is, exactly, you’re not alone. More than two-thirds of Americans are in the same boat.
Medical and legal professionals can both agree that this is not a favorable statistic. Powers of attorney are not just legal documents; they’re an ever-changing collection of values and preferences. They should communicate about your wishes in case you cannot.
Put simply, a power of attorney is a process designed to help you delegate your personal power of decision-making to someone else.
When you think about it, that’s a huge responsibility for both you and your chosen person. As a document, a power of attorney allows you to appoint this person as your “agent.” It grants them the authority to temporarily or permanently act on your behalf in all matters — especially in financial and health-related matters.
A healthy 72-year-old, for example, might say they want a breathing tube but, when they arrive closer to that situation, their choice may change. The very fact that you will return to amend a power of attorney over the years is why you should understand this foundational legal tool well.
Three Types of Powers of Attorney
There are three kinds of powers of attorney, and they are defined by the limits to this granting of authority, as well as the individual’s mental capacity. There are also specific powers of attorney regarding situations such as personal care and protection of property. As an appointer and creator of the POA, you can have documentation about all of these contingencies.
1. Ordinary Power of Attorney
An ordinary or “general” power of attorney grants a broad type of authorization or power to the agent. This generalized authorization allows the person you designate to handle a variety of tasks. General or ordinary powers of attorney have an effective start and end date, as you choose.
To use this ordinary or general power of attorney, you must be mentally competent while creating or drafting it. You have to continue to remain mentally competent as long as the power of attorney is effective.
For Your Property
A general or ordinary power of attorney allows your agent to act on your behalf over real estate matters like buying and selling property and entering into contracts. Again, you must be in a proper mental state of competence and awareness.
However, a continuing or durable power of attorney could also allow your designated agent to act on your account over financial matters like making bill and rent payments, making purchases, managing your bank accounts, and generally oversee your finances. However, continuing or durable powers of attorney remain intact even if you become mentally incapacitated.
2. Durable Power of Attorney
A durable power of attorney, also known as an enduring or a continuing POA, goes into effect if and when an individual reaches a state of being unable to make their own decisions. However, it must be created when the individual is still mentally competent to be considered valid.
Pro-tip: A durable power of attorney can also go into effect — and remain in action — when the individual becomes mentally incapable of making their own decisions. Opting for this option, rather than an ordinary or general POA allows you to cover your bases, in case of unforeseen circumstances.
A durable power of attorney is a highly useful and flexible option when the “principal” (the individual granting the authority) is suddenly diagnosed with a long-term illness. They are competent and in a fit mental state but granting someone else the decision-making power, in proxy, so they can focus on more pressing things like doctor’s appointments or convalescing.
For Personal Care
Durable power of attorney can also address specific situations like health and personal care. Another name for this type of authorization is a healthcare or medical power of attorney. Medical POAs are durable and they allow the agent to execute on your wishes about medical treatments, end of life decisions, and medical practices. This is in case you enter a state where you’re unable to communicate, or you’re not lucid.
Take care in speaking to this agent you trust about your ethics and values because they will be making decisions on your behalf. That’s a huge responsibility, and they need to understand what your beliefs are, even if they don’t particularly agree with them.
For this reason, it’s best to pick someone who shares your life perspective or your beliefs. This ensures that the decisions they make and the decision you would have made align together as much as possible.
3. Specialized Power of Attorney
Specialized or specific powers of attorney require you to very narrowly define the circumstances in which you grant authority to your agent. However, the specificity also makes it limited, which is why these are known as limited powers of attorney.
Work with your lawyer to get as detailed as possible with how you want your agent to behave. In this exercise, your lawyer will guide you in outlining and defining all possible cases.
Lawyers and Notary Publics For Powers of Attorney
Once your lawyer helps you draft your chosen power of attorney, the common question is whether your power of attorney has to be notarized?
The role of your lawyer and the role of a notary public differ vastly when it comes to drafting and witnessing powers of attorney. Whether or not the finished document does need a notary also depends on state law.
You can create your own powers of attorney using forms available online. However, most states require the document to be drafted by a professional and licensed attorney or lawyer. It’s the attorney’s responsibility to ensure the contents of the document are not only accurate but that they also meet the needs of the principal (their client).
Effective durable powers of attorney require a level of detail and expertise, then, that only an attorney can offer. Once the attorney drafts these documents, you will need one or two witnesses who will be present for your signing. These witnesses will also sign on the copies of the POA to assert that they did indeed see you signing this document.
What Is a Notary Publics’ Function for a Power of Attorney?
Notary publics for powers of attorney are based on state law. If they’re a part of the process, they will prepare an acknowledgment affixed to the power of attorney. This acknowledgment focuses on three areas:
- That the principal for the POA appeared in person before the notary
- That the principal declares, in front of the notary public, that their signature on the POA is their own and that they’re signing willingly
- That the principal intends that the provisions of the power of attorney should take effect
Many states across the U.S. require this added level of authorization and attestation. However, notaries cannot draft the actual power of attorney document. The creation of these documents is considered legal work, and so it falls under the purview of a lawyer. However, notary publics can (and, in certain states, must) bear witness to the signing by making it an official notarial act.
To transform the signing of a will into an official notarial act, the notary public requires certain formalities to be met. The principal and witnesses may need to have I.D. They will also apply their seal to the document, provide a short form or certificate that gives the date, time, and the notarial act performed.
Why Notary Publics Can Help Protect a Power of Attorney
Using a notary public for a power of attorney gives principals and attorneys an added layer of protection because the notary public is essentially authenticating the document. In case the authenticity of a power of attorney is questioned or contested by another family member, the official seal of a notary public makes it easier for a court to uphold these documents as true.
State laws usually fall into one of four groups when it comes to notarizations for powers of attorney:
- States that require the principal’s signature be notarized
- States that only call for one or two witnesses to sign the documents
- States that give the option of notarization and witness signature
- States that require the presence of both witnesses and a notarization
Illinois state requirements for powers of attorney, for example, require that a witness sign a power of attorney, but only the principal’s signature needs to be notarized. New York state law, in contrast, requires both the principal and the agent (but not the witness) have their signature notarized.
A power of attorney is an incredibly important part of estate planning. They’re often used in conjunction with wills, advance directives, and other end-of-life legal documentation. As an assigning of authority and personal power, they are an effective way to ensure your wishes are met and your assets protected.
However, the only way to formally authentic these documents is to use a notary public for powers of attorney. Notary publics use the notarial act to add a level of protection to your documentation, Even if your state doesn’t require their presence, the authority that a notary public adds is irrefutable.
When you work with Superior Notary Services, you’ll receive access to notary publics in your state at any time; click here to find a mobile notary near you! Our mobile notary services can help you with authenticating, witnessing, and acknowledging your legal documents any day of the week, at any time. Contact Super Notary Services today and find out how we’re helping our customers formalize their business and life plans with ease and expediency.
Ultimate Guide on Power of Attorney Notaries