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 document, 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.
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. 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. But, each of them can do things in your name without asking permission from the other, unless you write out that you want it to be different.
You can also name a “successor attorney.” This is someone who takes over if the first one can’t or won’t do it anymore.
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 can’t be forced to move or forced to do anything you don’t agree to. You don’t lose the right to control property or money. You don’t lose the right to make decisions about your life like where you live and how you spend your time. You can revoke (take back) the power of attorney at any 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 is responsible for keeping records of all the transactions they do for you. This is called “accounting.” 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.
Legally, the attorney-in-fact is supposed to do things only in your best interest.
A power of attorney must be written, dated, and signed by you in front of a notary public. If you want the power to end at a certain time, list the day, month, and year when it ends.
Important: 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.
The power of attorney form was updated in January 1, 2014. In the form, the Attorney in Fact has to sign the form but doesn’t have to sign in front of a notary like the old form. The current 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 formnow, use the form that is attached to this factsheet. Make sure you read the “Important Notice to the Principal” page after the form. You need to initial it to show you have read it and keep it as part of the form.
You must be mentally competent and able to make decisions on your own. Mentally competent means that you are “of sound mind.” Some people who have a dementia diagnosis or other disability may still be mentally competent even with that diagnosis. If there is a question of competence you may want to talk to your doctor or health care provider before signing a power of attorney form.
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.
“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.
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.
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).
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 won’t know, and your attorney-in fact could still try to do business in your name.
You should also get the original power of attorney back.