What is a Power of Attorney?

Granting someone Power of Attorney is a decision that should be made carefully. Essentially, this document gives whomever you designate (called your Attorney-in-Fact) the authority to sign important documents on your behalf. The authority given can vary, however, based on the type of Power of Attorney you choose.

There are three main types of Power of Attorney: Power of Attorney with General Provisions, Durable Power of Attorney, and Special Power of Attorney

1. Power of Attorney with General Provisions: This is often referred to as a “non-durable” or “limited” Power of Attorney. It takes effect immediately upon signing but terminates upon the grantor’s incapacitation, making it a less desirable option if your goal is estate planning.

2. Durable Power of Attorney: Of all the types of Power of Attorney, this is, by far, the most common document we draft for our clients. This does not go into effect immediately; instead, it becomes effective upon your incapacitation, allowing your Attorney-in-Fact to handle matters for you while you are unable to do so. It can also be drafted with general provisions, allowing it to be effective immediately and beyond your incapacitation.

3. Special Power of Attorney: This document gives another authority to act for you but only on a specific matter such as opening a bank account or selling a home. This type of Power of Attorney is useful if you do not want to grant someone the authority to handle all of your matters for you but you do need assistance with a specific task. The document can be drafted to terminate upon the completion of the designated task or after a certain time frame.

In any case, all types of Power of Attorney terminate upon death. The authority granted by these documents cannot be exercised after the grantor has passed away. Even if you were able to sign checks out of your parent’s bank account as their Attorney-in-Fact prior to their passing, you cannot continue to do so after their death—even for something like funeral expenses! Another court process called probate is necessary to designate you as a personal representative of an estate in order to handle a decedent’s property. You can learn more about that process here. 

Nevertheless, the Power of Attorney is a crucial part of estate planning and must be carefully considered. We often hear stories of individuals taking advantage of the elderly due to having Power of Attorney authority over their finances. Carefully selecting someone to act as your Attorney-in-Fact can help you avoid such a situation. You can read more about strategies to protect your assets here.

If you want to discuss a Power of Attorney or any other part of estate planning, do not hesitate to give us a call at 701-852-5224.