Power of Attorneys

Let’s chat about Power of Attorneys. While the information contained in this post might be applicable to you, it might also be applicable to your elderly relatives, so, read this with them in mind.

You may be asking yourself (i) what is a Power of Attorney, and (ii) why would I need it? A Power of Attorney is a document that gives a person authority to act on your behalf. The Power of Attorney document can be very specific or very broad. You can give a person the power to handle your bank accounts, sell your real property, run your business or apply for public benefits. Or you can give one person the specific power to sell one piece of property.

Why do you need it? It’s a simple tool that allows your appointed person to handle your financial matters without entering into more complicated agreements, like a trust agreement. The Power of Attorney helps eliminate the need of a guardian or conservator. You should pick someone you trust to have legal authority to make decisions should you experience an unforeseen event like a stroke or car accident.

There are four types of Power of Attorneys:

  1. General Power of Attorney, which allows the appointed person to act as you in dealing with financial accounts and managing personal finances. However, it is terminated upon your incapacitation. It can also be revoked.

  2. Durable Power of Attorney, allows the appointed person to act on your behalf and includes a durable clause that keeps the Power of Attorney after you become incapacitated.

  3. Special or Limited Power of Attorney, which is when you have given the appointed person very specific powers limiting the appointed persons abilities.

  4. Springing Durable Power of Attorney, which only becomes effective upon your incapacitation. In Utah, a Power of Attorney is considered Durable unless it expressly states that it terminates upon your incapacitation.

When appointing a person, you should think about whether your appointed person can handle the pressure of your financial obligations. It should be someone you trust to manage your financial affairs when you are unable to do so. So, while you may feel that your first born should be given the Power of Attorney, if your first born is incapable of being financially sound, you may want to think of someone else.

The duties of the appointed person include:

  • Respecting your wishes and acting only in your best interests.

  • Involving you in the decision making.

  • Managing all assets carefully.

  • Remembering that the assets belong to you.

  • Keeping good records of everything paid or received.

  • Keeping separate your funds and their funds.

  • Acting only within the direction granted in the Power of Attorney.

  • Complying with the terms of the Power of Attorney.

The appointed person has the authority under the HIPA Act to access your private health care information and allows them to communicate with your healthcare providers, unless you direct otherwise in the Power of Attorney. But note that the power of attorney does NOT authorize the appointed person to make health care decisions, that is given in the Advanced Health Care Directive (or Living Will), which will be discussed in a future post.

If you are going to live in a hospital, assisted living facility, or something similar, you may not name the owner, operator or health care provider as the appointed person. Unless the person in this position is also your spouse, legal guardian, or next of kin. As with a revocable trust, the Power of Attorney may also be revoked at any time. The revocation of the Power of Attorney should be dated and in writing, but doesn’t need to be notarized. If you are changing the Power of Attorney, you must put it in writing, execute and have the change notarized.

A Power of Attorney terminates if:

  • You die.

  • You become incapacitated with a general Power of Attorney.

  • You revoke the Power of Attorney.

  • You put in the Power of Attorney that it terminates at a certain time (e.g. the Power of Attorney is only valid for two years).

  • The purpose of the Power of Attorney is completed (e.g., the Power of Attorney was for the sale of real property and the property has been sold).

  • You revoke the appointed person’s authority or they die, or become incapacitated, or resign, and the Power of Attorney does not provide for another appointed person to act under the Power of Attorney.

An appointed person’s authority terminates when:

  • You revoke the authority.

  • The appointed person dies, becomes incapacitated, or resigns.

  • The term of the Power of Attorney finishes.

Some really important points of Power of Attorney are as follows:

  • The power has to be given, it is not something you get over someone.

  • You must have the legal capacity to understand the authority being assigned.

  • The appointed person has the authority to do only those things that are assigned in the document.

  • The appointed person must make decisions the way you want, not how the appointed person would do for themselves.

Once again, while you could certainly benefit from a Power of Attorney, there might be someone in your life who needs one right now. Whether you would like to have a Power of Attorney ready for use in the future, or whether you have a loved one who could benefit from one right now, call us today to set up your free consultation.