If you want someone to act on your behalf when you are unable to do so, you can choose to give power of attorney to a trusted friend, family member, or business associate.
A power of attorney (POA) is a document in which a person, called the principal, authorizes someone, called the agent, to act on their behalf in certain situations.
Types of powers of attorney
There are many kinds of powers of attorney, but the following are among the most common.
Durable power of attorney. The most common type of POA, a durable power of attorney, stays in effect if you become incapacitated, thus negating the need for the agent to seek guardianship. If the power of attorney isn't durable, it ends upon your incapacitation.
General power of attorney. With this authorization, an agent can act on behalf of the principal without limitation so long as he does so in good faith.
Limited power of attorney. As the name suggests, a limited POA gives the agent the right to perform only a specific transaction, after which the POA may end, depending on the wording of the document.
Healthcare power of attorney. An agent can make health-related decisions for you, should you be incompetent or incapacitated in some way.
Springing power of attorney. This type of POA doesn't take effect until a specific event occurs, such as your becoming mentally incompetent or incapacitated by other health issues. In some states, a doctor needs to verify that you're incapacitated so that the springing POA takes effect.
Transferring a power of attorney
If you're the agent of a POA, you cannot transfer it to someone else, including to a family member such as a sibling or child. The only person who can transfer the POA is the principal, so long as she's competent.
A POA can't be transferred after the principal passes away.
Powers of attorney end when the principal passes on, at which point the executor of the will takes over management of the estate.
How the principal can transfer a POA
As the principal, there are a limited number of ways you can transfer powers of attorney. The most efficient is to name more than one agent in the POA document. Having an attorney prepare the document naming one or more successor agents is a good idea because if the first agent can't act or resigns, the next person listed becomes the agent, and so on.
If you're the principal and have only one agent listed, you can change your POA by revoking it in writing and notifying the agent. In many states, revocation also requires witnesses, a notary, or both. Once the original POA is revoked, you then prepare a new POA document naming a new agent. You can revoke a POA and make a new one at any time, so long as you're competent to do so.
Changing the POA when the principal is not competent
If the principal is not competent and the agent has resigned, is unavailable, or is abusing the principal, the family must go to court to get a guardian, or conservator, for the principal. It's then up to the court to decide if the principal needs a guardian.
Guardianship also comes into play if an agent hasn't acted in the principal's best interests and, as the principal's trusted family member or friend, you want to invalidate the POA. The principal may understand what's going on, but her current agent may render her helpless. Be prepared to step in as guardian or agent if the court agrees with you.
Principals can transfer power of attorney in limited circumstances, so your best bet, as principal, is naming several successor agents in your POA document.
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