Difference between revisions of "Prepare a Power of Attorney"
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== Steps == | == Steps == | ||
=== Deciding When to Use a Power of Attorney Document vs. Seeking Guardianship === | === Deciding When to Use a Power of Attorney Document vs. Seeking Guardianship === | ||
| − | # Talk to your loved ones about a power of attorney document. If you want your loved one to have the power to make decisions for you, talk to them about why you want them to have this control. Make sure you choose someone who will respect your wishes as your “agent,” or the person to whom you are giving the power.<ref>http://info.legalzoom.com/become-power-attorney-disabled-person-20628.html</ref> | + | # Talk to your loved ones about a power of attorney document. If you want your loved one to have the power to make decisions for you, talk to them about why you want them to have this control. Make sure you choose someone who will respect your wishes as your “agent,” or the person to whom you are giving the power.<ref name="rf1">http://info.legalzoom.com/become-power-attorney-disabled-person-20628.html</ref> |
#* If you want to get power of attorney over someone, the simplest way to do so is to get the permission of the person who may need to turn over his or her decision-making rights. | #* If you want to get power of attorney over someone, the simplest way to do so is to get the permission of the person who may need to turn over his or her decision-making rights. | ||
#* If your loved one is terminally ill and knows that the time may come when he or she won't be able to make financial or medical decisions, he or she may decide to sign over power of attorney to someone else. | #* If your loved one is terminally ill and knows that the time may come when he or she won't be able to make financial or medical decisions, he or she may decide to sign over power of attorney to someone else. | ||
| − | # Choose between a power of attorney document and seeking guardianship. In order for someone to grant power of attorney, he or she must be of sound mind. Talk to your loved one to make sure he or she understands what it means to sign over power of attorney, including what types of decisions will be made on his or her behalf.<ref>http://www.nolo.com/legal-encyclopedia/question-make-power-of-attorney-mother-28261.html</ref> | + | # Choose between a power of attorney document and seeking guardianship. In order for someone to grant power of attorney, he or she must be of sound mind. Talk to your loved one to make sure he or she understands what it means to sign over power of attorney, including what types of decisions will be made on his or her behalf.<ref name="rf2">http://www.nolo.com/legal-encyclopedia/question-make-power-of-attorney-mother-28261.html</ref> |
| − | #* If your loved one is already mentally incapacitated, but previously granted power of attorney to you or someone else in a living will, it is unnecessary to take steps to obtain power of attorney.<ref>http://www.nolo.com/legal-encyclopedia/conservatorships-adult-guardianships-30063.html</ref> | + | #* If your loved one is already mentally incapacitated, but previously granted power of attorney to you or someone else in a living will, it is unnecessary to take steps to obtain power of attorney.<ref name="rf3">http://www.nolo.com/legal-encyclopedia/conservatorships-adult-guardianships-30063.html</ref> |
| − | #* If your loved one is already mentally incapacitated and did not grant power of attorney in a living will, it may be necessary to obtain conservatorship, or adult guardianship, in order to legally carry out your loved one's affairs.<ref | + | #* If your loved one is already mentally incapacitated and did not grant power of attorney in a living will, it may be necessary to obtain conservatorship, or adult guardianship, in order to legally carry out your loved one's affairs.<ref name="rf3" /> |
# Consider seeking guardianship or conservatorship. If you believe that you should have control over the decisions of someone who is unable to make decisions for himself, you must go to the court and ask to be appointed as a conservator or guardian. To become a guardian of someone, they must be deemed “legally incompetent” by the court. That is, they must not be able to meet their own basic needs. If you believe that you know someone who can meet the criteria for incompetent, you may petition the court to be named guardian. | # Consider seeking guardianship or conservatorship. If you believe that you should have control over the decisions of someone who is unable to make decisions for himself, you must go to the court and ask to be appointed as a conservator or guardian. To become a guardian of someone, they must be deemed “legally incompetent” by the court. That is, they must not be able to meet their own basic needs. If you believe that you know someone who can meet the criteria for incompetent, you may petition the court to be named guardian. | ||
#* The district court in the county where the proposed ward lives has jurisdiction over the guardianship petition. Once the petition is file, the court will schedule a hearing where the proposed guardian must establish: | #* The district court in the county where the proposed ward lives has jurisdiction over the guardianship petition. Once the petition is file, the court will schedule a hearing where the proposed guardian must establish: | ||
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# Decide if the power of attorney should be medical. A healthcare power of attorney enables someone to make medical decisions for a person who has become incapacitated. You would need to provide the document to hospitals, doctors, and anyplace else that the agent will need to make medical decisions for the principal. | # Decide if the power of attorney should be medical. A healthcare power of attorney enables someone to make medical decisions for a person who has become incapacitated. You would need to provide the document to hospitals, doctors, and anyplace else that the agent will need to make medical decisions for the principal. | ||
#* If you want to grant both financial and medical powers of attorney, remember that you do not need to same the same person as the agent in both circumstances. However, the two people will need to cooperate to act in your best interests, so choose people who can do so. | #* If you want to grant both financial and medical powers of attorney, remember that you do not need to same the same person as the agent in both circumstances. However, the two people will need to cooperate to act in your best interests, so choose people who can do so. | ||
| − | # Determine if the power of attorney should be “durable.” A “durable” power of attorney goes into effect immediately. It also remains valid when the person who grants it becomes incapacitated.<ref>http://www.nolo.com/legal-encyclopedia/durable-financial-power-of-attorney-29936.html</ref> | + | # Determine if the power of attorney should be “durable.” A “durable” power of attorney goes into effect immediately. It also remains valid when the person who grants it becomes incapacitated.<ref name="rf4">http://www.nolo.com/legal-encyclopedia/durable-financial-power-of-attorney-29936.html</ref> |
#* For example, many seriously ill people choose a durable power of attorney because they want their agent to continue to make their decisions after they can no longer communicate their wishes, and, because of their illness, want the power of attorney to go immediately into effect. | #* For example, many seriously ill people choose a durable power of attorney because they want their agent to continue to make their decisions after they can no longer communicate their wishes, and, because of their illness, want the power of attorney to go immediately into effect. | ||
#* If the word ‘durable’ is not specified, the power of attorney is voided when the person who granted it becomes incapacitated. | #* If the word ‘durable’ is not specified, the power of attorney is voided when the person who granted it becomes incapacitated. | ||
# Determine if the power of attorney should be “springing.” A “springing” power of attorney doesn’t go into effect until the principal’s specified date. For instance, if you want to grant someone financial power of attorney while you plan to be out of the country, you can specify that the document takes effect on the day you leave. | # Determine if the power of attorney should be “springing.” A “springing” power of attorney doesn’t go into effect until the principal’s specified date. For instance, if you want to grant someone financial power of attorney while you plan to be out of the country, you can specify that the document takes effect on the day you leave. | ||
| − | #* You can also mix springing and durable powers of attorney. A springing durable power of attorney does not go into effect until the person who grants it specifies that it will go into effect (such as once the person becomes incapacitated) and will remain in effect through the person’s incapacitation.<ref | + | #* You can also mix springing and durable powers of attorney. A springing durable power of attorney does not go into effect until the person who grants it specifies that it will go into effect (such as once the person becomes incapacitated) and will remain in effect through the person’s incapacitation.<ref name="rf4" /> This does require that the agent show proof of the person’s incapacitation before the power of attorney will take effect. |
#** This type of power of attorney is not legal in all states, so make sure you check your particular state laws before attempting to draft a springing durable power of attorney. | #** This type of power of attorney is not legal in all states, so make sure you check your particular state laws before attempting to draft a springing durable power of attorney. | ||
# Avoid a general power of attorney unless you’re certain. A general power of attorney may give the agent both financial and medical power of attorney. Ensure that you use the correct document for your circumstances. In some situations, such as with serious illness, a general power of attorney might make the most sense. | # Avoid a general power of attorney unless you’re certain. A general power of attorney may give the agent both financial and medical power of attorney. Ensure that you use the correct document for your circumstances. In some situations, such as with serious illness, a general power of attorney might make the most sense. | ||
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#* Specify exactly what legal acts the agent is entitled to perform | #* Specify exactly what legal acts the agent is entitled to perform | ||
# Download or write a power of attorney form. Most states don't require government-written legal documents. However, in order to prevent any confusion and to make sure that both parties know exactly what authority is being granted, it's a good idea to use a state-issued form as a template. | # Download or write a power of attorney form. Most states don't require government-written legal documents. However, in order to prevent any confusion and to make sure that both parties know exactly what authority is being granted, it's a good idea to use a state-issued form as a template. | ||
| − | #* The specifics of the form will vary by state, and each state may have a different form for different powers. For example, Wisconsin provides different forms for a [https://www.dhs.wisconsin.gov/forms/advdirectives/f00085.pdf health care power of attorney] and [https://www.dhs.wisconsin.gov/form/f00036.pdf financial power of attorney].<ref>https://www.dhs.wisconsin.gov/forms/advdirectives/f00085.pdf</ref><ref>https://www.dhs.wisconsin.gov/form/f00036.pdf</ref> | + | #* The specifics of the form will vary by state, and each state may have a different form for different powers. For example, Wisconsin provides different forms for a [https://www.dhs.wisconsin.gov/forms/advdirectives/f00085.pdf health care power of attorney] and [https://www.dhs.wisconsin.gov/form/f00036.pdf financial power of attorney].<ref name="rf5">https://www.dhs.wisconsin.gov/forms/advdirectives/f00085.pdf</ref><ref name="rf6">https://www.dhs.wisconsin.gov/form/f00036.pdf</ref> |
| − | # Name the parties. The form should include the full name of the “principal,” the person granting power of attorney. It should also name the "agent," the person to whom the power is being granted.<ref>http://info.legalzoom.com/power-attorney-vs-durable-power-attorney-20053.html</ref> Alternate agents may also be named, in the event that the first agent is unable or unwilling to act on his or her authority. | + | # Name the parties. The form should include the full name of the “principal,” the person granting power of attorney. It should also name the "agent," the person to whom the power is being granted.<ref name="rf7">http://info.legalzoom.com/power-attorney-vs-durable-power-attorney-20053.html</ref> Alternate agents may also be named, in the event that the first agent is unable or unwilling to act on his or her authority. |
| − | # Name the powers granted. Make sure that you clearly and specifically identify the powers that are being granted to the agent, when those powers will take effect, and when (if ever) those powers will cease to have an effect.<ref | + | # Name the powers granted. Make sure that you clearly and specifically identify the powers that are being granted to the agent, when those powers will take effect, and when (if ever) those powers will cease to have an effect.<ref name="rf7" /> This is also the space where you will include whether the document is durable or springing if either is applicable. This will prevent confusion. |
#* For example, instead of saying that the agent “has power over the principal’s finances,” say that the agent “has the power to withdraw money and make payments from the principal’s three bank accounts: bank account X, bank account Y, and bank account Z.” | #* For example, instead of saying that the agent “has power over the principal’s finances,” say that the agent “has the power to withdraw money and make payments from the principal’s three bank accounts: bank account X, bank account Y, and bank account Z.” | ||
#* If the power of attorney is durable, it's especially important to make sure that the principal and the agent are in agreement about what responsibilities and authorities are being transferred. | #* If the power of attorney is durable, it's especially important to make sure that the principal and the agent are in agreement about what responsibilities and authorities are being transferred. | ||
# Note powers that a principal cannot confer. Make sure that the principal and agent know that some powers cannot be conferred under state law. If the power of attorney purports to transfer a power under state law that cannot be transferred, the power of attorney is void as to that power. | # Note powers that a principal cannot confer. Make sure that the principal and agent know that some powers cannot be conferred under state law. If the power of attorney purports to transfer a power under state law that cannot be transferred, the power of attorney is void as to that power. | ||
#* For instance, even if the principal and the agent agree, the agent cannot write or execute a will for the principal. Any such will is not valid. | #* For instance, even if the principal and the agent agree, the agent cannot write or execute a will for the principal. Any such will is not valid. | ||
| − | # Gather witnesses. In some states, it is necessary to have the signing of the document witnessed by one or two people.<ref>Elder Law: Cases and Materials, LexisNexis, Fifth Edition (See chapter 9, “Guardianship”).</ref> If this is the case in your state, make sure witnesses are not only present but paying full attention as the agent and the principal sign the document. The witnesses should be comfortable testifying as to the document’s authenticity. | + | # Gather witnesses. In some states, it is necessary to have the signing of the document witnessed by one or two people.<ref name="rf8">Elder Law: Cases and Materials, LexisNexis, Fifth Edition (See chapter 9, “Guardianship”).</ref> If this is the case in your state, make sure witnesses are not only present but paying full attention as the agent and the principal sign the document. The witnesses should be comfortable testifying as to the document’s authenticity. |
| − | #* For instance, in Florida, a power of attorney document must be signed by two witnesses, whereas Utah does not require witnesses.<ref>http://www.eko-law.com/florida-attorney-blog/florida-power-of-attorney-law/?_ga=1.195319852.1676299220.1423340119</ref><ref>http://www.utahlegalservices.org/public/legal_problem-en-us/senior/powers-of-attorney/how-do-i-create-a-power-of-attorney?_ga=1.261043469.1676299220.1423340119</ref> | + | #* For instance, in Florida, a power of attorney document must be signed by two witnesses, whereas Utah does not require witnesses.<ref name="rf9">http://www.eko-law.com/florida-attorney-blog/florida-power-of-attorney-law/?_ga=1.195319852.1676299220.1423340119</ref><ref name="rf10">http://www.utahlegalservices.org/public/legal_problem-en-us/senior/powers-of-attorney/how-do-i-create-a-power-of-attorney?_ga=1.261043469.1676299220.1423340119</ref> |
| − | #* Check [http://statelaws.findlaw.com/health-care-laws/durable-power-of-attorney.html here] to find out if your state requires a power of attorney document to be signed by witnesses.<ref>http://statelaws.findlaw.com/health-care-laws/durable-power-of-attorney.html</ref> | + | #* Check [http://statelaws.findlaw.com/health-care-laws/durable-power-of-attorney.html here] to find out if your state requires a power of attorney document to be signed by witnesses.<ref name="rf11">http://statelaws.findlaw.com/health-care-laws/durable-power-of-attorney.html</ref> |
# Prepare a Revocation of Power of Attorney if you change your mind. If you draw up a power of attorney that hasn't expired, but you no longer want it to be in effect, you can draw up this form according to your state's laws to have it invalidated. Talk with your attorney to make sure it's done correctly. | # Prepare a Revocation of Power of Attorney if you change your mind. If you draw up a power of attorney that hasn't expired, but you no longer want it to be in effect, you can draw up this form according to your state's laws to have it invalidated. Talk with your attorney to make sure it's done correctly. | ||
#* You can find more information at: [[Revoke Power of Attorney|How to Revoke Power of Attorney]] | #* You can find more information at: [[Revoke Power of Attorney|How to Revoke Power of Attorney]] | ||
=== Protecting Your Power of Attorney Document === | === Protecting Your Power of Attorney Document === | ||
| − | # Consider hiring an attorney to review the document. An attorney may notice legal issues that people who aren't trained in legal matters would not think to include or leave out.<ref>Wills, Trusts & Estates, Dukeminier, Eighth Edition (pgs. 335-340; 448-457).</ref> For example, an attorney may notice that the document uses language that could been seen as ambiguous and could lead to confusion. | + | # Consider hiring an attorney to review the document. An attorney may notice legal issues that people who aren't trained in legal matters would not think to include or leave out.<ref name="rf12">Wills, Trusts & Estates, Dukeminier, Eighth Edition (pgs. 335-340; 448-457).</ref> For example, an attorney may notice that the document uses language that could been seen as ambiguous and could lead to confusion. |
| − | # Have the document notarized. Some states might not require you to have the document notarized. However, having the principal’s signature notarized eliminates any doubt regarding the validity of that signature. The notary must verify the identity of the principal before witnessing the signature. Notarizing the power of attorney document reduces the chance that it will be contested by an outside party who may question its validity.<ref>http://info.legalzoom.com/appoint-power-attorney-22161.html</ref> | + | # Have the document notarized. Some states might not require you to have the document notarized. However, having the principal’s signature notarized eliminates any doubt regarding the validity of that signature. The notary must verify the identity of the principal before witnessing the signature. Notarizing the power of attorney document reduces the chance that it will be contested by an outside party who may question its validity.<ref name="rf13">http://info.legalzoom.com/appoint-power-attorney-22161.html</ref> |
#* You can find more information about notarizing a document at: [[Notarize a Power of Attorney|How to Notarize a Power of Attorney]] | #* You can find more information about notarizing a document at: [[Notarize a Power of Attorney|How to Notarize a Power of Attorney]] | ||
# Show the document to any institutions you want to recognize it. Financial institutions, such as banks and brokerage firms, do not want to inadvertently accept fraudulent power of attorney documents. They have requirements that must be met in order to accept the document and give the agent the powers listed. In order to make sure that your document is sufficient, show it to your bank and other financial institutions before signing it, to make sure that they will accept it after it is signed. | # Show the document to any institutions you want to recognize it. Financial institutions, such as banks and brokerage firms, do not want to inadvertently accept fraudulent power of attorney documents. They have requirements that must be met in order to accept the document and give the agent the powers listed. In order to make sure that your document is sufficient, show it to your bank and other financial institutions before signing it, to make sure that they will accept it after it is signed. | ||
