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Powers of Attorney

Authored By: Minneapolis - Mid-Minnesota Legal Aid
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Contents
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Contents

What is a power of attorney? +

A power of attorney is written permission for someone to take care of property or money matters for you, in whatever way you want.  In a power of attorney paper, you are called the “principal” (person giving the power).  The person who will take care of things for you is called the “attorney-in-fact.”  This person does not have to be a lawyer. 

 

If an attorney-in-fact takes legal action in your name, it is the same as if you had done it yourself.  With a power of attorney, you can still act for yourself when you want to, but the attorney-in-fact can also act for you.  The attorney-in-fact is not your guardian.  You cannot be forced to move or forced to do anything you don’t agree to. You do not lose the right to control property or money. You can revoke (take back) the power of attorney at any time. You don't los ethe right tomake decisions about your life like where you live and how you spend your time.

 

Usually, you give a power of attorney so someone else can sign papers about property and money matters.  The power can be limited to a certain thing, like selling a property, or it can be very broad, such as handling all property and money matters.  It depends on what you write on the power of attorney form. 

 

The attorney-in-fact must keep a record of anything they do for you.  Legally, they are supposed to do things only in your best interest.

 

It is important to pick someone you trust deeply.  Remember they will have control of things like your bank accounts or property.

 

You can list more than one attorney-in-fact.  If you do, it is important to know that each of them can do things in your name without asking permission from the other.  But, you can write on the power of attorney form that you do not want it to be that way.  You can also name a “successor attorney”.  This is someone who takes over if the first one can’t do it anymore.   

How do I make a power of attorney? +

A power of attorney must be written, dated, and signed by you in front of a notary public.  You can fill out the form at the end of this fact sheet.  If you want the power to end at a certain time, list the day, month, and year when it will end.

 

It is important to understand that the power of attorney is effective as soon as it is signed and notarized. It gives powers to the attorney in fact right away- not only if you become sick or incapacitated.

 

This is a new power of attorney form that must be used after January 1, 2014.  In this new form, the Attorney in Fact has to sign the form too but doesn’t have to sign in front of a notary.  The new form has more instructions and warnings about the roles and responsibilities of an Attorney in Fact. 

 

If you did a Power of Attorney form in the past it is still okay.  You don’t need to do a new one.  If you are making a Power of Attorney form now, use the new form that is attached to this factsheet.  Make sure you read the “Important Notice to the Principal” sheet after the form.  You need to initial it to show you have read it and keep it as part of the form.

 

Or you can create a Power of Attorney onlineat www.LawHelpMN.org/formhelper.

  • Click on “Health Care and Other Powers”
  • Click on “Power of Attorney”

 

This is a step-by-step interview that lets you print out a completed form when done.

Who can have a power of attorney? +

You must be mentally competent and able to make decisions on your own. Mentally competent means that you are “of sound mind.”  

 

If a person is not mentally competent, or incompetent, it is too late to make a power of attorney.  In that situation, a guardianship or conservatorship may need to be created. 

 

For more information on these, see our fact sheet, Guardianships and Conservatorships.

What is a durable power of attorney? +

“Durable” means lasting.  Normally, if you become mentally incompetent, the power of attorney is not good any more.  But you can write that you want to continue the power even if you become incompetent.  Then it is called a durable power of attorney.  If you say on it “This power of attorney shall not be affected by incapacity of the principal” it would be a durable power of attorney. 

 

If you do become mentally incompetent, a durable power of attorney can only be ended by a court-appointed conservator.

Do I need a lawyer to do a power of attorney? +

No.  But it is a good idea to use a lawyer.  The courts watch over the things that guardians or conservators do, but they do not watch over what an attorney-in-fact does.  An attorney-in-fact could take advantage of you.  A lawyer can help you put things in your power of attorney papers that limit the actions of the attorney-in-fact or make them have to show what they do with money and property.

How does the power of attorney work? +

Both the principal and the attorney-in-fact should have a copy of the document.  If you are giving a power to sell land, you need to file a signed original at the county recorder’s office.  If the power deals with money matters, file a copy with the bank. 

 

When the attorney-in-fact acts for you, they sign their own name and then write:

 

                (their signature)     As attorney-in-fact for    (your name).

Who should be my attorney-in-fact? +

Any competent person over the age of 18 can be your attorney-in-fact.  This includes family members.  Many people choose a spouse or child.  You should be very careful to choose someone you trust. 

 

The attorney-in-fact is responsible for keeping records of all the transactions they do for you.  This is called “accounting.”  You should ask to see these records on a regular basis.  Even if you trust someone, getting regular accountings on a quarterly or monthly basis is a good idea.  It is also a good idea to have the accountings go to you AND someone else like a family member or friend who can help keep track of things.

Can I stop a power of attorney? +

Yes.  A competent person can revoke (take back) a power of attorney at any time.  You must put in writing that you revoke the power of attorney, and sign and date this in front of a notary.  Send copies to the attorney-in-fact and to any person, office or bank the attorney-in-fact dealt with for you.  If you do not send out copies of the revocation, the businesses will not know and your attorney-in fact can still do business in your name.

 

You should also get the original power of attorney back.

 

 

There is a Revocation of Power of Attorney form at the end of this fact sheet. 

 

OR YOU CAN create a Revocation of Power of Attorney onlineat www.LawHelpMN.org/formhelper.

  • Click on “Health Care and Other Powers”
  • Click on “Power of Attorney Revocation”

 

This is a step-by-step interview that lets you print out a completed form when done.

 

 

Powers of attorney automatically end when the principal dies.  If you give a power of attorney to your spouse, it ends if either of you start a divorce, separation, or annulment case.

Link to PDF of fact sheet with forms at end +