Power of Attorney - Guidelines and Templates

What are the legal requirements for a power of attorney (POA)?

This document need not be done by a lawyer. However, you have to be sure that you understand all the implications and fully trust your choice of Agent (Attorney-in-Fact).

Having said that, getting your POA drafted by a lawyer is not a very expensive exercise. Get quotes from reputable law firms in your area to help you make a decision.

If you want to make your own POA using any of our free legal forms, then refer to the checklist further down on this page to ensure you comply with the legal requirements for a power of attorney.

We supply the following free templates:

• General POA;
• Durable or Lasting POA;
• Limited or special POA forms which can be used for finances and tax returns, the buying / selling or managing of real estate, empowering your agent to buy/sell a vehicle, boat or motorcycle on your behalf;
• Medical POA;
• Revocation form, etc.

Who can Execute a POA and Who can be Appointed as Agent or Attorney

• For your document to be valid, you must be of legal age and mentally competent to execute such a document.
• The person you appoint as your Agent must be a legal adult.
• You can name more than one Agent but you must specify whether they must make the decisions:
  
  Jointly - Neither can act without agreement from the other (this can create practical and/or legal problems).
  
  Jointly and Severally - They can make decisions together and they can do it separately.
• You should name an alternative / substitute in case the Agent you appointed is unable or unwilling to serve.

Who can Sign as Witnesses

• The power of attorney must be signed in the presence of two independent witnesses. The legal requirements for POA witnesses are:
  
  They must be of legal age.
  
  They must not be related by blood, marriage, adoption or in childcare of either the Principal or Agent.
  
  The Agent can not sign as witness.
• The document must be notarized by a notary public or commissioner of oath.
• You can produce several originals and have them witnessed and notarized, otherwise copies must be certified.

How Long does a POA Last

• A POA always become null and void upon your death or on the expiration date specified in the document. It also becomes null and void when you become incapacitated unless you specifically added the statement "Durable Power of Attorney".
• If a POA has been filed or recorded for real estate purposes and is revoked at a later stage, it is important to have the revocation filed and recorded as well.
• A POA becomes effective upon your signing of the document. If you want it to become effective only later if/when you become incapacitated (a "Springing Power of Attorney"), you must define how you must be judged incapacitated and grant permission for physicians to pronounce you so.
• In most states and countries if a spouse was named an Agent in a POA, it will cease on divorce or filing for divorce, unless specified otherwise. To be safe, you should issue a revocation and compile a new POA document.
• You must make a statement that you revoke any prior POA documents should they exist.

What is the Difference Between a Power of Attorney and an Executor and a Trustee

1. Very simply, a Power of Attorney allows for someone to act on your behalf and according to your wishes (if you are still mentally competent), whilst you are still alive.

2. Upon your death, the POA expires and now the Executor will take over and wind up your estate according to your wishes as set out in your Last Will and Testament.

3. IF you made provision for a Testamentary Trust in your Will, then a Trustee will administer the assets in such a Trust (created after your death) until the conditions as specified by you in your will have been met.

What is the Difference Between Guardianship and Conservatorship?

All the information pertaining to the various Power of Attorney forms that you can complete, is based on one very important premise, and that being that the person executing the POA must have full mental capacity to understand the legal document.

However, if a person is incapacitated, then a judge can appoint a guardian or conservator to oversee his affairs. In some instances, this person may also be called a curator.

Visit our page on Adult Guardianship where we discuss this in depth.

We will show you the difference between guardianship and conservatorship and show examples of the legal process to obtain special guardianship orders.

Does this site deserve your thumbs up?