Powers of Attorney
A power of attorney and a power of appointment are two separate powers. Each one gives the appointed person permission to act on behalf of the person who has given them that power.
A Power of Attorney is a legal document that details the authority of the appointed attorney-in-fact, who is entitled to act as the principal's agent. The person bestowing the power of attorney is called the principal, and the person who is given the power of attorney is called an attorney-in-fact. Unless the principal authorizes the termination of the power of attorney, the power of attorney lasts until the principal becomes incapacitated or passes away. Your attorney-in-fact is authorized to act on behalf of your best interests. They do not have to be an attorney in order to be given the power of attorney.
A Durable Power of Attorney either stays effective or becomes effective when the principal becomes incapacitated and lasts until the principal's death. You must, however, state that the power of attorney is durable in order for it to be lasting. As long as you are capable of making your own decisions, you can choose to terminate your durable power of attorney agreement at any time.
In California, if your spouse is your attorney-in-fact and you file for divorce, their role as attorney-in-fact is instantly revoked. A court can also decide to terminate the power of attorney if they find that you were not in the right mental state of mind when you appointed someone to the role.
The scope of authority that your attorney-in-fact has can be as broad or as limited as you would like it to be, and you still retain all of your own decision-making authority. Your agent can never override you as long as you are legally competent.
In order for a power of attorney to be considered legal and valid, you must sign the document. Your signature must either be witnessed by two people that are over 18 years of age or certified by a notary public.
Durable Power of Attorney For Health Care:
The person whom you appoint as your health care agent has as much or as little authority as you specify. If you authorize your agent to make all decisions regarding your health care, however, this person will be allowed to:
- Agree to or refuse any type of medical treatment that affects your mental or physical health. (Your agent, however, cannot override any decisions that you've made in a living will.)
- Make decisions about who will medically care for you and where your treatment will take place. For example, if you have been rendered incapacitated, and your agent is not satisfied with the treatment that you are receiving at a medical center in Berkeley, he or she can choose to have you transferred to another hospital in the same city or a different one.
- Get a court to authorize or withhold treatment if a medical provider refuses to abide by your health care directive.
- Visit you at the hospital outside of general visiting hours.
- Have access to your personal and medical records.
Durable Power of Attorney for Finances:
Giving someone durable power of attorney over your finances gives someone else the authority to manage your finances. There are two basic types of durable powers of attorney for finances.
Springing Durable Power of Attorney: Lets your attorney-in-fact manage your finances if you ever become incapacitated.
Immediate Durable Power of Attorney: Becomes effective the moment it is signed by you.
Examples of what your power of attorney for finances can do for you:
- Sell or buy property.
- Make cash withdrawals, bank deposits, and other financial transactions.
- File your tax forms.
- Handle your finances.
- Negotiate and authorize contracts for you.
- Apply for and collect benefits for you.
- Run your business.
- Hire an attorney for you.
- Fund a trust that you've created.
- Pay your daily expenses.
- Manage your finances.
Power of Appointment
A Power of Appointment is very important when you need someone to divide and distribute your property for you. The person who is granted this power has the authority to give people the right of ownership. There are two types of power of appointment. A special power of appointment limits the holder in terms of who they can bestow ownership rights to; usually the person that has been bestowed the special power of appointment is prohibited from giving ownership rights of a property to him or herself. A general power of appointment gives the holder the right to give themselves property rights.
An estate planning lawyer can help you draft your financial power of attorney, medical power of attorney, or power of appointment so that your wishes are clearly stated and honored. Should you become incapacitated and unable to speak for yourself, the accuracy of your instructions in these documents will be especially critical.
Our attorneys at Sagaria Law, P.C. can help ensure that your personal matters, the care of your health, and your financial affairs are properly structured and managed.