Saturday, August 11, 2012

Understanding Power-of-Attorney

A power-of-attorney (POA) is a legal document or instrument which allows one person to have the legal right to take actions and/or make decisions on another person's behalf. With a broad power-of-attorney, the recipient is able to legally do virtually anything that the issuer could have done him- or herself. As such, a POA can be a very powerful device in both daily, transactional, and probate application.

Power-of-Attorney Basics

A power-of-attorney document is issued (or "executed") by a person called the Principal. This is the person who intends to delegate certain rights and responsibilities to another person, or to have that person act on his or her behalf. The person to whom rights and responsibilities are delegated is called the Agent or Attorney-in-fact. Depending on the terms of the POA, the Agent may be given the power to:

- Manage the Principal's property (including buying and selling)

- Invest, liquidate, transfer, or otherwise manage the Principal's financial assets

- Undertake litigation or deal with legal matters on the Principal's behalf

- Take other legal, financial, or property-related actions or decisions

It is important to remember that, although a POA gives great power to an Agent, the Principal is still in control of his or her own affairs, and can make decisions regardless of whether he has issued a power-of-attorney. For example, a power-of-attorney can be revoked at any time by the Principal for any reason. Certain types of POA may also become invalidated upon the Principal's death or incapacitation (i.e., if the Principal becomes mentally incompetent to make sound decisions).

Types of Power-of-Attorney

Powers-of-attorney are generally divided into three main categories: durable, non-durable, and springing.

Non-durable powers-of-attorney are POAs which take effect immediately and will become invalid, should the Principal die or become mentally incompetent.

Durable powers-of-attorney are POAs which take effect immediately but remain valid even if the Principal becomes mentally incompetent and last until the Principal dies.

Springing powers-of-attorney are POAs which are designed to take effect upon the occurrence of a certain event, such as the principal's death.

Choosing an Agent

Choosing the right Agent is a key step in drafting a power-of-attorney. An untrustworthy agent can destroy your finances, relationships, and legal standing with the powers that you delegate to them. Furthermore, it is usually up to the Principal or people close to him/her to monitor the actions of the Agent. Keeping accurate records can help catch evidence of abuse before too much damage is done.

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