Web Law Review -- Power of Attorney

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Power of Attorney

By Michael E. Petrie
Attorney at Law

ower of Attorney. A simple everyday term used with frequency by attorneys, doctors, business persons and lay people in general. The fact is that many people are confused by the term "Power of Attorney." Some common questions are: Must the holder of a Power of Attorney be an actual attorney, licensed to practice law? How long does a Power of Attorney last? What powers does a Power of Attorney give to the holder?

Each state may provide different rules or protocols regarding Power of Attorney, so the following discussion should be interpreted broadly and any specific questions regarding Power of Attorney should be directed to an attorney licensed in the state where the Power of Attorney is to be held.

First of all, a person does not need to be a licensed attorney to hold a Power of Attorney. While a Power of Attorney should, generally, be drafted by a licensed attorney, the agent who holds the Power of Attorney need not be an attorney or have any special legal training. A Power of Attorney, in California, is a written instrument in which one person (the principal) designates to another person (the agent) the authority to act on the principal's behalf. Like a Revocable Trust, a Power of Attorney provides one means for someone to entrust the management of his or her affairs to another.

How long a power of attorney lasts is within the discretion of the principal. A "Durable Power of Attorney" allows the power to endure and is a most common type of Power of Attorney. If a Power of Attorney is made "durable," it remains in effect even when the principal later loses capacity. To be durable, the instrument creating the power must contain the words "this power of attorney shall not be affected by subsequent incapacity of the principal" or similar wording showing the same intent. A Durable Power of Attorney for property management, therefore, provides a person with the means for surrogate management of his or her financial affairs during the principal's lifetime, regardless of capacity.

In general, a Durable Power of Attorney is effective until the principal dies, unless the principal revokes the Power of Attorney, or termination of the Power of Attorney is provided for by the very terms of the instrument creating it. A Durable Power of Attorney does not, however, confer any power over the principal's assets after the death of the principal.

Highlights

Power of Attorney laws (and forms) vary from state to state

You are not required to be a lawyer to hold a Power of Attorney as an agent for someone else

The content (and forms) differ depending on the specific purpose of the Power of Attorney

The authority ceases at the death of person granting power

Person granting power can revoke it and determines how long in lasts

A 'Durable' Power of Attorney continues after incapacitation

Conditions and triggering events can be specified in the language of the document

A Power of Attorney can be broad or it can be restricted to a specific transaction

Attorney fees for preparing and executing a Durable Power of Attorney are generally less than those for setting up a Revocable Trust or establishing a Conservatorship. Like a revocable trust, the Durable Power of Attorney does not require court supervision and thereby ensures the principal's privacy and minimizes delays in financial transactions. A Durable Power of Attorney may be designated to be effective immediately on its execution or only upon some triggering event, such as when the principal is determined to have lost capacity.

A Durable Power of Attorney is also quite flexible. The powers granted to the agent may be as broad or as narrow as the principal desires. The power can be over the financial matters of the principal or over health care or apply only some specific transaction. As a matter of fact, the powers could be made so broad so as to authorize the agent to do virtually anything the principal can do, with few exceptions. However, some third parties, title companies for example, may be less willing to transact business with an agent and may act with suspicion when presented with a broadly written Durable Power of Attorney instrument that does not specifically enumerate the agent's powers.

As you can see, there is nothing mystical, magical or even particularly complex about a Power of Attorney. It is merely a vehicle for one person to acquire authority to handle the affairs of another. If you are interested in granting a Power of Attorney to someone whom you wish to designate as your agent, you should contact your attorney who will be able to answer specific questions and draft the necessary legal documents.

Michael E. Petrie is licensed to practice law in California, New York, Texas, District of Columbia and is a member of the Bar of the Supreme Court of the United States of America. He is a principal in the Law Offices of Petrie & Associates (www.petrielaw.com) and can be reached at the firm's California offices or by e-mail at mpetrie@petrielaw.com.

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