MISCONCEPTION #1. A power of attorney can be authorized at any time.

– I received a phone call asking me to draft a power of attorney. The caller said that she had just received certification from her father’s doctor stating that he is no longer competent. “Can you draft a power of attorney and living trust for my dad?” she asked. Unfortunately, I can’t do that. Once someone lacks legal capacity, they can no longer sign any legal document including a power of attorney or living trust, which of course is the purpose of the document. At this point, the only recourse is a guardianship proceeding through the courts, which can be extremely costly and time-consuming.

MISCONCEPTION #2. Power of Attorney documents are all the same. I’ll just download one from the web.

– Everyone’s circumstances are unique. Without guidance from an experienced estate attorney, a generic POA document could expose your estate to legal challenges and interjections. Unfortunately, when problems with a POA are discovered it’s usually too late.

MISCONCEPTION #3. A Power of Attorney grants the agent the right to make any decision that they choose.

– Within a POA the agent has an obligation to make decisions that are in the best interests of the principal. While the POA grants authority, the right to act is based on fiduciary circumstances. If the action is not in the best interests of the principal, the agent does not have the right to act. In fact, many people fear signing a POA because they are concerned that their agent will mismanage their estate. Although the fiduciary obligation offers protection, it is important to choose someone that you trust to be your agent.

MISCONCEPTION #4. There is one standard Power of Attorney; it covers everything.

– It is much more flexible than that. The principal determines what powers to grant their agent in the document, which is why it’s important that it be drafted by an experienced attorney.

  • A general power of attorney governs all powers covered by a power of attorney, such as buying or selling property or otherwise managing one’s assets.
  • A limited or special power of attorney can grant very precise authorizations. For example, a power of attorney can be drafted which only grants the power to conduct a real estate sale.

MISCONCEPTION #5. Only a Durable Power of Attorney survives death.

-All powers of attorney terminate upon the principal’s death. The difference between a regular power of attorney and a durable power of attorney revolves primarily around incapacity.

 

  • A standard POA terminates upon death or incapacity. Once either of those events happens, the POA is invalid.
  • A Durable POA survives mental incapacity, but not death. The agent can act on the principal’s behalf even if the principal is declared mentally incompetent.