A power of attorney gives a loved one the legal authority to handle your healthcare, financial, or other important decisions for you if you’re unable to. This can help you both during major life events when you need extra help or if you’re physically or mentally unable to make decisions on your own.
What Exactly is a Power of Attorney?
A power of attorney is a legal document that grants the named person the power to take the actions you list in the document. Doctors, financial institutions, schools, and others honor instructions from the power of attorney as if they were coming from you. Without this document, they would usually be legally bound to ignore the power of attorney’s instructions even if they believe that’s what you would want.
What Does a Power of Attorney Cover?
A power of attorney can cover virtually all decisions, or it can cover one specific action. What you include is up to you. Power of attorney powers might include the following.
- Healthcare decisions
- Care of your children
- Paying your bills
- Managing your finances, including selling assets or investments to cover expenses
- Operating your business
- Making decisions in litigation on your behalf (similar to how you would instruct an attorney rather than the actual legal work)
What Form Does a Power of Attorney Need?
You can find many templates and examples, but there is no specific form to use. The power of attorney just needs to be clear that it’s a power of attorney, name who you’re choosing as your agent, and list the powers you’re granting that person. It’s preferable to have it notarized so that there’s no question about its validity. You can sign in front of two witnesses rather than a notary if you need to.
What is a Durable Power of Attorney?
A durable power of attorney is a power of attorney that lasts even if you’re incapacitated due to illness or accident. Not all powers of attorney are durable. For example, someone working abroad may designate someone to manage their affairs back home without making the power of attorney durable.
A power of attorney that isn’t durable terminates on your incapacitation. To be durable, the form must include your intent that it be durable.
What Do You Do With a Power of Attorney?
Your agent will need to present the power of attorney form to prove that they’re authorized to act on your behalf. You should keep at least one copy for yourself with additional copies located wherever you have copies of your other important documents. This allows your family to be aware of the power of attorney if something happens to you.
Can You Cancel a Power of Attorney?
You can cancel a power of attorney at any time for any reason. You just need to notify your agent. You may also wish to notify anyone that your agent was working with if you wish to make sure they no longer honor your agent’s instructions.
How Long Does a Power of Attorney Last?
A power of attorney might be indefinite, last for a specific amount of time, last until something happens, or only cover a specific action or event. You decide this when you create your power of attorney. No matter which option you choose, you still retain the right to cancel it early.
In the case of a durable power of attorney, it will be in effect from the time a physician or court declares you are incapacitated and last until death. You can cancel it if you recover and are competent to do so.
What Happens to a Power of Attorney When the Principal Dies?
If you die, your agent’s powers cease when they learn of your death. A power of attorney cannot be used to handle your estate even if you try to include that in your power of attorney. You would need to rely on a will or other planning documents.
What Must a Power of Attorney Do?
A power of attorney must act in your best interests. They cannot use your funds for their own benefit. When authorized to make medical decisions, they must follow your wishes as they understand them even if they would choose a different course of action.
What Can’t a Power of Attorney Do?
There are several things that you can’t include in a power of attorney under Washington law. These include several very important medical and legal decisions.
- Medical: Amputation, shock therapy, life support decisions, or institutionalization. You’d need an advanced healthcare directive instead.
- Financial: Changing life insurance beneficiaries, modifying a community property agreement, or making monetary gifts unless these actions are specifically included in the power of attorney. Modifying a will or voting in elections can never be included.
What if there is a Disagreement Over a Power of Attorney?
Your agent must follow your instructions, and you can remove your agent at any time. In case of a durable power of attorney where you’re incapacitated, your family can petition a court to invalidate the power of attorney or to force the agent to act in accordance with the instructions in the document.
Is an Out-of-State Power of Attorney Valid?
Most states will honor a power of attorney from another state at least on a temporary basis. If you become a resident of a new state, you should make sure your power of attorney meets the requirements for that state.
What if a Power of Attorney Names Two Agents?
A power of attorney may name one or more agents. If you name multiple agents, they must act jointly and agree on all decisions. You can also allow them to act independently, meaning each can act without input by the other(s), if you specifically state this in your power of attorney.
What is the Difference Between a Power of Attorney and a Living Will?
A living will or advanced healthcare directive spells out what major medical decisions you’d want made on your behalf. These documents are used by your doctors and others to understand your wishes.
A power of attorney’s main job is to designate a specific person you want making decisions for you rather than the specific decisions to be made. While you can limit those decisions in the power of attorney, keep in mind the medical decisions that a power of attorney can never make by law.
What is the Difference Between a Power of Attorney and a Guardianship?
A guardianship has a higher level of responsibility and decision-making than a power of attorney. A guardianship must be approved by a judge, and the guardian must provide periodic updates to the court. A power of attorney only needs the proper forms.
What is the Washington Uniform Power of Attorney Act?
The Washington Uniform Power of Attorney Act was a 2017 law that added safeguards to prevent abuses of powers of attorney. Many of the restrictions and requirements described above were added as part of this act. While you may see references to the Washington Uniform Power of Attorney Act, this is just a formal way of describing the laws that routinely govern powers of attorney.
When Should You Update Your Power of Attorney?
There are several situations where you may need to update your power of attorney.
- You or your agent have moved, and the distance makes the arrangement impracticable.
- The agent is no longer willing or able to assume the duties, or you no longer want them to.
- Your life circumstances have changed and you need to agent to assume different responsibilities.
Do You Need an Attorney to Draft a Power of Attorney?
There is no legal requirement to have an attorney draft your power of attorney. However, a power of attorney confers important legal responsibilities, and you may want to have an attorney confirm that your power of attorney will do everything you want it to with no unintended consequences. Your attorney can also help you avoid technical mistakes that might result in a challenge to your power of attorney.
Contact us today to schedule a consultation.