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Power of Attorney: A Second Look

· Estate Planning

A power of attorney (POA) is a document you can sign giving someone else the authority to make legal, medical or financial decisions for you.

The Power of Attorney can say:
This Power of Attorney becomes effective upon my incapacity OR,
This Power of Attorney DOES NOT become effective upon my incapacity.

Incapacity means if you are unable to make decisions on your own due to mental or physical incapacity because of an accident or other circumstance.

How to Execute a Power of Attorney

You execute a power of attorney by signing it yourself or someone in your presence you have authorized to sign it for you. It is best to sign it in front of a notary in case your signature gets challenged later.

Once you sign your Power of Attorney, the agent can now make a wide variety of decisions on your behalf. This includes selling your assets, taking out loans, etc. If your agent acts improperly, you may end up in big trouble. Therefore, the MOST important thing to consider if you are thinking about signing a Power of Attorney is who you are going to appoint. It is best to pick someone you trust to responsibly manage your affairs.

One thing to look at is whether or not the donor, or the person signing over power of attorney, is susceptible to undue influence and may be at risk of being coerced into signing over Power of Attorney.

There are several factors to keep an eye out for that will point to undue influence: the age of the donor, their mental and/or physical strength, and the dependence on others, especially the individual they want to appoint as agent.

Mental capacity is especially important because the donor needs to be mentally competent in order to sign over Power of Attorney.

Termination of Power of Attorney

A Power of Attorney Terminates When

  • Principal dies
  • Principal becomes incapacitated- BIG EXCEPTION
    • EXCEPTION: if Power of Attorney is DURABLE
      • If the Power of Attorney is durable, then the Power of Attorney will stay in effect even when the principal becomes incapacitated
    • Principal revokes POA
      • How to Revoke a POA
        • Once you have a Power of Attorney in place, you can revoke it. You can revoke your Power of Attorney the same way you executed it.
        • You can revoke the agent’s authority or the agent dies or becomes incapacitated and the Power of Attorney does not provide for another agent
        • The Power of Attorney can also automatically expire.
          • For instance: The Power of Attorney states a time when it ends, OR The purpose of the Power of Attorney is accomplished
    • TIP: It is also not a bad idea to appoint a successor agent in the event that the agent you initially appoint dies or becomes incapacitated. Wyo. Stat. 3-9-110

An interested party can challenge the Power of Attorney in court. If the court finds that there is undue influence or that the agent acted improperly, the court will take away the Power of Attorney and appoint a guardian.

If you have a POA already in place and you execute a second POA, the first is still in effect unless you include in your second one that the first POA is now invalid.

It is the best practice to make your Power of Attorney as specific as possible. There are limitations you can put in your Power of Attorney if you wish. Otherwise, in the event you are incapacitated (If it is not a Durable Power of Attorney), your agent could make decisions on your behalf that you did not actually want to authorize them to do.

IMPORTANT CONSIDERATIONS

A Power of Attorney is something that should not be taken lightly. Whoever you appoint has a tremendous amount of power and you should make sure that who you appoint is trustworthy.

If you have any questions, you should contact an attorney to review your Power of Attorney paperwork. You can call the Legal Aid Hotline at 877-432-9955 for free legal advice.

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