Perhaps you've heard the phrase "Power of Attorney" on a TV lawyer show, or even from a real lawyer. Ever wonder what it means?
What is Power of Attorney?
A Power of Attorney (POA) is a document granting one person or organization (typically called an agent or attorney-in-fact) the authority to act on the behalf of another person. POAs can be general and broad in scope or limited to specific aspects such as health-care decisions or financial management.
A POA is often used to outline plans in case you become incapacitated and are unable to handle your own affairs. In that case, a POA is called a durable power of attorney since it continues beyond your incapacitation.
It is important that your agent for the POA be a reliable individual whom you can trust. Agents are expected to look out for your best interests and must not abuse the powers that you have given them.
You can revoke your POA at any time by notifying your agent in writing and collecting all the existing copies of the POA. You may also need to notify agencies and financial institutions that the POA has been revoked. Once you have signed a POA, you can continue to make your own decisions until the conditions that trigger the POA happen (such as incapacitation).
An attorney is not necessary to create a POA, but it is usually wise to consult with one. The POA defines the powers that are to be given to the agent and the conditions under which they are valid (such as durability). It is very important to write the POA precisely as per your wishes to ensure that they are carried out properly.
Financial POAs are usually set up for an agent to take care of day-to-day decisions as well as major financial ones in case you are unable to make these decisions for yourself. They could include bill paying, tax obligations, disposition of property and assets, or directing investments.
What You Need to Know About Being Granted Power of Attorney
What if you are on the other end of a POA and named as an agent for another person? Once you assume the POA for another person, you have a fiduciary responsibility to that person to act in his or her best interests. The first item of business is to read the POA and make sure that you fully understand the powers that are being granted to you. The POA document and applicable state laws outline and define your powers.
Note that you are obligated to carry out the directions in the document, even if you believe that one of those directions should be done differently. If you do not think you can carry it out, ask your principal to find another agent. When possible, continue to involve the principal in the financial decisions.
It is extremely important to keep the principal's finances separate from yours and to keep meticulous records to track the principal's finances. As an agent, you must avoid conflicts of interest or even the appearance of such — not easy to do when you are the agent for a close friend or relative.
When a principal's government benefits such as Social Security are involved, you will not be able to manage them as the agent without a special appointment by the agency. There may be a separate representative payee for these benefits. Co-agents are not uncommon, and co-agent relationships are sometimes directly spelled out in the POA. Regardless of how co-agents are designated, you are obligated to work with the co-agent to maintain the best interests of the principal.
The Consumer Financial Protection Bureau (CFPB) has more details on your responsibilities and options in case you are asked to become an agent. See their pamphlet, "Managing Someone Else's Money" for more information.
POAs are important, powerful documents that are not to be taken lightly whether you are the principal or the agent. Set up your POA carefully with appropriate legal assistance. If you are named as an agent, make sure you take your POA responsibilities seriously and be diligent in executing them. Treat the principal as you would want to be treated.