Legal Ease by
Shane Givens
Jan. 4, 2011
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What is a power of attorney? I received this question recently: “I have an ailing mother who may require some pretty extensive care in the near future. Do I need to have a power of attorney drawn up for her?” A power of attorney is a legal document wherein a person, called the “principal,” gives another person, called the “agent,” legal authority to act on the principal's behalf. Power of attorney can be given to anyone, for anything. The scope can be narrow, such as giving someone else the authority to sign a specific legal document on a specific day; or it can be broad, like giving a son or daughter full authority over all affairs. Sometimes people are confused about what a power of attorney does because of the use of the word “attorney.” Granting someone power of attorney, however, really has no connection to a lawyer (other than the fact that one should be consulted). In fact, the word “attorney” actually means “a person acting for another as an agent.” An attorney at law, then, is a lawyer who is acting as an agent in legal matters. You may grant the “power” for someone to act as your agent, or attorney, to anyone. In estate planning situations, a person usually looks to grant a broad power of attorney to someone they trust so that if they are hospitalized, unconscious, or can't communicate, their named agent can legally take care of their business. This is called a general durable power of attorney and should be granted only to someone in whom there is a bond of complete trust. A general durable power of attorney is very useful, should it be needed. In fact, largely because of today's strict privacy policies most banks, insurance companies, and other institutions won't even answer simple questions about an account without such documentation. A general durable power of attorney can be set up as either “springing” or “sprung.” A springing power of attorney takes effect upon the occurrence of some event, such as the principal's incapacity. A sprung power of attorney is one that is immediately effective upon the principal's signing. Many people like the springing power of attorney because it becomes effective only when needed. In answer to the initial question, if you think a loved one will someday be in a situation where they cannot effectively communicate or take care of their affairs, you need to have that them talk to a lawyer about the benefits of a power of attorney. This column is intended for general information purposes only. The answers to most legal problems rely on specific facts of a particular situation; therefore, it is very important to see a lawyer when these situations arise. Please e-mail questions for future columns to givenslaw@tds.net. |