Frequently Asked Questions
A: If a person has “power of attorney” it means they have been authorized to act on behalf of another person, called the “principal”. The authorized person is called the “agent” or “attorney-in-fact”.
A: Authority to act as an agent for another person is given in a legal document signed by the principal and acknowledged in front of a notary.
A: Yes, generally the agent is required to acknowledge certain responsibilities in order to exercise the authority of being an agent.
A: The power of attorney is said to be “durable” if it continues to be effective even when the principal becomes legally incapacitated. Now, being dead is not the same thing as being legally incapacitated. With very limited exceptions, once the principal is dead, the power of attorney is no longer in effect and the agent's power is gone.
A: It depends on the wording of the power of attorney document. Sometimes it has immediate effect, but lawyers often use a “springing” power of attorney that only takes effect if, for example, the principal's physician certifies that the principal is unable to manage their affairs.
A: No, but you might want to. There are lots of templates and forms available for free or for a small cost. But they are not all effective and no single form is right for everyone. A lawyer can help evaluate your needs and create a power of attorney document that you can have confidence in.
A: Good lawyers tend to be busy, so their time is valuable. A careful lawyer will take the time needed to speak directly with the principal to evaluate their needs and advise them on the benefits and risks of different aspects of the legal document they are signing. Hourly rates vary, and you should expect to pay for about an hour of your lawyer's time.
A: Generally, no. The principal must have legal capacity to sign the power of attorney. If they are physically disabled but still mentally sound, there are legal means to have their signature placed on the document by a notary.
A: If you need to legally appoint someone to act for a person who cannot give power of attorney, you may need to ask the probate court to appoint a guardian or conservator or both.
A: Unfortunately, no. No one is absolutely required to deal with an agent. Banks, title companies, credit card issuers, utilities, insurance companies, and other businesses will all have their own policies when it comes to accepting a power of attorney given by a customer. They want to be sure that they won't get sued for letting the agent act on the principal's behalf, such as withdrawing money from the principal's bank account or canceling an insurance policy. So, they may require a review by their legal department and the document might not pass that review.