Updated: Oct 13, 2018
It is great way to manage financial and health care related affairs in any unfortunate situations such as sickness, mental incapacity, disability etc.
Everyone would like to manage their lifetime affairs themselves, however, in many unfortunate situations you are obliged to appoint power of attorney.
What should I know before I start?
Attorney or Agent: A person who is empowered to act on behalf of the donor under a general or specific power of attorney.
Proxy, Attorney-in-fact, Agent, Patient advocate or Surrogate: Depending on your USA state, the person you grant a durable power of attorney for healthcare will typically be called your "agent," "proxy," "attorney-in-fact," "patient advocate" or "surrogate."
Donor or Principal: A person who gives a power of attorney to look after his or her financial or healthcare affairs.
Assessors: A person who is authorized to conduct an assessment of a donor's mental capacity for particular purposes such as appointing a guardian for a property without going through the court process. They have appropriate professional backgrounds and have training in capacity assessment. They are usually independent of the government.
Execution: It is the process of creating Power of attorney.
Enduring: It is the process of following the duties of attorney outlined in the Power of attorney document. Enduring is the term in general used for most countries while, in the USA the term "Durable" is used, in place of "Enduring."
Revocable vs. Irrevocable: As the names suggest, the revocable one can be terminated by the principal at any time, while the irrevocable, cannot be terminated by the principal.
Enduring Power of Attorney: It is a legal document where you appoint a person of your choice to manage your assets and financial affairs if you are unable to do so due to illness, an accident or your absence. This word is used in Canada, UK, and Australia.
Durable Power of attorney: It is the word is used in the USA only. If you choose to make your Power of Attorney effective immediately, then you must decide whether it will be “durable.” A durable power of attorney remains useful in the event you become incapacitated.
Medical or Healthcare power of attorney: It allows a donor to appoint someone to make decisions about donor's medical treatment if he or she becomes mentally or physically incapable of deciding for him or her self. This word is used in the UK, USA, and Australia.
General Power of attorney vs. Specific Power of attorney: Donor (can grant Attorney (or agent) broad powers to do almost anything you could do for yourself (general power of attorney) or you can pick and choose the authority you want to give an agent which pertains to the specific power of attorney.
Advance directives: In USA, this is legally valid documents which allow you to express your wishes about the kind of medical treatments you want, and instruct a person of your choosing the ability to make health care decisions on your behalf before a situation arises where you are unable to do so. Advance directives are especially useful in medical emergency situations or near the end of a person’s life. There are two main types of advance directives: the living will and healthcare power of attorney. States regulate the use of advance directives, and laws vary among the states. Some states permit family members to make all medical decisions for their incapacitated loved ones, while other states require clear evidence of the person’s own wishes or a legally designated decision maker.
Why should you appoint the Power of Attorney
There are number of reasons on importance of appointing Power of Attorney such as
We do not know the time arrival of unfortunate time.
Medical issues such as the person is mentally incapable, sickness or disability.
Someone may be migrated from other country and do not know about managing finances.
What should you be aware as a donor?
To make a valid power of attorney, you must be an adult and “mentally capable” of giving power to the attorney.
If you are mentally capable but can not speak the local state, provincial, territorial or national language in which the Power of Attorney document is created then you may have to find legal LANGUAGE TRANSLATOR (from legal firm or education institutes such as college or university etc.) in order to create valid Power of Attorney document. The translator will act as a mediator between Donor, Power of Attorney, Notary and witnesses. The language translator must know both the languages; the local language in which power of attorney document is created and the language of donor.
You should know that Giving power of attorney to someone is a serious matter. There is always a risk that your attorney could misuse his power. Do not appoint the person as your Power of Attorney if you have any doubts about the motives or ability of the person you are considering or are under any pressure from your proposed attorney to pick him or her.
The authority you give as the “principal” can have a significant impact on you as well as your wealth. For instance, your agent may sell your house, withdraw money from your accounts, or place you in a nursing home. Unlike a guardian or conservator, a person acting with a Power of Attorney does not have to answer to a court. Also, there will be no formal or legal governmental oversight on your attorney or agent regarding the decisions he or she makes.
Talk to the person you wish to appoint and make sure that he or she is willing to accept the responsibility involved in being your attorney for property.
Make sure your attorney understands what your wishes are. Therefore, it is highly recommended that you discuss your wants and desires with the person you name in your Power of Attorney.
You can always have a right to revoke a Power of Attorney as long as you are mentally competent to do so and do not miss to put this clause in your power of attorney document.
You do not have to give your attorney authority for all of the capabilities as you can limit which you would like to give by removing undesired provisions. You may choose whether your attorney to accomplish a specific task or only for a limited period of time to make it explicit rather than general in nature if you wish to.
You have a choice to appoint one or more persons as an attorney or agent. It is wise to nominate more than one attorney to prolong the life of your Power of attorney document. You may appoint the joint attorney to act at the same time or substitute attorney which means when one attorney is not available then another attorney can manage affairs.
You may choose when your Power of attorney should remain in effect, either immediately or any events triggered such as in a situation of mental incapacity.
When should you decide creating Power of Attorney?
When you are planning to go overseas, then you may create power of attorney to manage your affairs while you are away. This power of attorney will be in effect only when you are in overseas.
Most Powers of Attorney acts are a state, provincial or territorial matter except for few countries such as India and China.
You need to be adult for creating your power of attorney.
You may create for a limited time, such as six months.
How to create legal Power of Attorney?
There are specific requirement to follow for converting your Power of Attorney in legal form.
Find the Power of Attorney act document from internet, specific to the state, province or territory and a majority of the time, you would discover sample Power of attorney that you may utilize as a starting point. Alternatively, you may contact local public notary or legal firm to complete for you.
Read and modify as required to ensure it has all the clause covered as per your wish.
The last step is to follow the proper signing process as per your local government state, provincial or territorial law. The minimum requirements, in general, are as follows...
You, your attorney and witnesses must be an adult and mentally capable.
It must be in writing (not the hologram or hand written) and ensure the Donor as well as Attorney name and address information as per government issued ID. If there is discrepancies in any information, your document may become illegal or invalid.
It must be signed by the donor, two witnesses, attorney and Public notary (or lawyer) in the presence of each other. Donor, witnesses, attorney and Public notary (or lawyer) must be present all time during the signing process.
If a donor is not capable of signing, then someone on behalf of him or her should be signing, only with the donor's consent and approval.
Who can be my attorney?
Any adult as per state, province or territorial law.
A judge, justice of the peace or magistrate in a state, province or territory.
A qualified medical practitioner in state or province;
A notary public for state or province;
A lawyer entitled to practice in state or province; or
A member of the police officer in state or province
Many trust companies are prepared to act as attorney and charge a fee for this service. Some individuals choose this option because they want an attorney who is professional and impartial.
Who can not be my attorney?
A person designated as an Attorney in the Power of attorney document.
The spouse or adult-interdependent partner of a person selected in the enduring power of attorney as the attorney;
Public Guardian and Trustee (PGT) as your attorney for the property unless the PGT agrees in advance in writing to act as attorney for you.
Who can not be my witnesses for Power of Attorney?
The following persons may not witness the signing of an enduring power of attorney:
A person under age of adulthood.
A person designated as an Attorney in the Power of attorney document
The spouse or adult-interdependent partner of a person selected in the enduring power of attorney as the attorney.
The spouse or adult-interdependent partner of the donor.
A person who signs the enduring power of attorney on behalf of the donor;
A person treats as his or her child.
A person whose property is under guardianship or who has a guardian of the person.
What are the authorities of Power of Attorney in general?
An attorney under an enduring power of attorney may apply for the opinion, advice or direction of the court on any matter respecting the management or administration of the donor’s property.
An Attorney my terminate the enduring power of attorney (Except in the case of an irrevocable power of attorney), and notwithstanding any agreement or waiver to the contrary, an enduring power of attorney terminates, if it is revoked in writing by the donor at a time when the donor is mentally capable of understanding the nature and effect of the revocation.
Which authorities do not possess by Power of Attorney?
An attorney can not revoke or terminate the Power of attorney if it is irrevocable.
An attorney can not the renunciate power of attorney if it is revoked in writing by the donor at a time when the donor is mentally capable of understanding the nature and effect of the revocation;
An attorney shall not incur any liability to the donor or to any other person for having acted in pursuance of a power of an attorney that has been terminated or that is void because of the donor would be mental incapacity or infirmity if the attorney did not know, and had no reasonable grounds for believing, that the attorney’s authority had terminated or been lost.
When the Power of Attonrney document is suspended?
The donor becomes bankrupt unless otherwise provided for in the enduring power of attorney;
The attorney becomes bankrupt, mentally incompetent or dies;
The donor dies;
The donor, while mentally competent, revokes the enduring power of attorney in writing;
The donor is declared by a doctor to be mentally incompetent, and in need of someone to manage his or her affairs, but the doctor is unaware of the existence of the enduring power of attorney;
The presence of the enduring power of attorney is known, but there are concerns that the attorney is not acting rightly and in the interests of the donor; or
Personal decisions must be made on behalf of the mentally incompetent donor, and there is no one willing, able or suitable to make those decisions.
Any interested person may apply to the Court for an order for termination of the enduring power of attorney. The Court may grant an order terminating the enduring power of attorney if the Court considers that this would be in the best interests of the donor. Upon issuing an order terminating an enduring power of attorney, the Court shall not appoint a substitute attorney but may direct an applicant forthwith for trusteeship order in respect of donor's estate or an appointed interim trustee of the donor's estates with such power as the court considered appropriate.
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