Health Care and Property Power of Attorney (POA)

Any time you’re entering into a legally binding contract, it can seem overwhelming. The nature of a power of attorney makes it that much more daunting, granting someone control over your personal, financial, and business interests. Doing so requires a significant amount of trust in the agent you’re appointing to manage your health care or property affairs.

Understandably, you likely have many questions and concerns as you consider a power of attorney. The answers to some of the frequently asked questions below are intended as general guidance. You should always discuss your specific needs with a trusted professional.

Q: Do I Need to Specify Certain Authorities to My POA?

Your agent cannot perform acts not covered in your power of attorney. The more comprehensive the document, the more acts your agent can undertake. Sometimes, broad language encompassing “all powers” for a specific purpose, such as managing your health care or property interests, may be sufficient. In other instances, authority is only given with express language. These instances might include the power to make gifts using your money, the power to designate beneficiaries on insurance policies, and more.

Various state laws also influence the type of language you will need to include in a POA. If certain state statutes cover various powers, granting your agent all authorities referenced under that statute, you may only need to include a statement about their authority to conduct all matters provided within that specific law.

Creating your power of attorney with the help of a knowledgeable attorney is the best way to ensure you’re protecting yourself and your agent accordingly. It will also help ensure the full extent of your wishes and that your agent will have the authority to carry out those wishes.

Q: How Is a Power of Attorney Executed?

You must be competent when entering into a power of attorney agreement, meaning you know the contents of what you are signing. Your agent must also be competent and aged 18 or older. All powers of attorney need to be witnessed when you and your agent provide signatures. Also, certain transactional powers that you’re entrusting to your agent will require your POA to be notarized and recorded per state law. Consult with an attorney to ensure the validity of your document based on its execution.

Q: Can I Still Act Independently With a Power of Attorney?

Yes, you still have the final say over your decisions for yourself and your property even with a power of attorney in place. Your agent can offer input, but you retain authority to override their decision. However, keep in mind, if your agent already acted independently, you cannot voice your conflicting wishes after an item has been sold or an irretrievable or irreversible decision has been made on your behalf. For this reason, you should appoint someone as your power of attorney only if you trust them and they’re aware of your interests and preferences.

One caveat is if you have a durable power of attorney, and your agent has declared that you’re mentally incapacitated or unable to act independently. If you disagree with their conclusion as to your mental capacity, it’ll be necessary for the agent to file a guardianship proceeding where a judge will determine your current mental status and ultimate authority over your future decisions.

Q: Can I Revoke a Power of Attorney?

Yes. You should provide written notice with your signature to your agent that you plan to revoke the power of attorney. This notice should also be provided to anyone who’s been handling your affairs with your agent by relying on the power of attorney. Your lawyer can help you take the correct steps to legally revoke the POA and notify the correct individuals.

Additionally, while a POA gives someone else the authority to act on your behalf, they are not obligated to serve. There’s an expectation that if they choose to perform the acts per the powers outlined in the POA, they will do so prudently. However, while they may have a moral duty to do so, they are not required to assume the powers allotted to them.

Is my power of attorney transferable from state to state? Your power of attorney remains in effect and must be honored even if you move to another state. However, it will be subject to the new state’s laws concerning powers of attorney, which might limit your agent’s authority to act on certain provisions of the document or in certain circumstances on your behalf. Additionally, your agent may experience delays when trying to effectuate certain acts if a third party requests that the POA be reviewed by an attorney within the new state to ensure it was properly executed (and thereby, not void) per your former state’s laws.

If you move to another state, it’s a good idea to speak with a lawyer about updating your power of attorney to reflect the new state’s laws and regulations.

Q: Does My Power of Attorney Expire at Some Point?

If you have a durable power of attorney, most states no longer require you to regularly renew the document for it to remain valid. Generally, it will continue to be effective until your date of death or if you decide to revoke it. However, it’s a good idea to meet with an attorney periodically to ensure the document still reflects the full extent of your current needs and wishes. Also, your lawyer can advise you about any state law changes that might affect your existing power of attorney.

If your POA contains a termination date, you will need to create a new power of attorney upon the passing of that date if you desire for your agent’s authority to continue, or if you want to assign a new agent to handle certain health care or property-related matters on your behalf.

Q: Will the Court Govern My Power of Attorney?

Typically, a power of attorney is created to avoid lengthy court proceedings regarding your affairs. Therefore, your agent is given authority by the POA to act without court supervision. However, a court can be called upon to consider certain issues when conflicts arise. You, your agent, or other interested parties can request a hearing to interpret or modify certain provisions of the POA, determine a third party’s obligation to honor any part of the POA, order your agent to provide an accounting, or have an agent removed.