Power of Attorney

Power of Attorney
Power of Attorney

A power of attorney is a legal document appointing another to act in the maker’s place when the maker is unable to take action personally. The maker is called the principal and the person authorized to act on the principal’s behalf is called the agent or attorney-in-fact. All powers of attorney terminate on the death of the principal. A principal may also revoke the power of attorney at any time as long as he or she is competent. A successor agent may be named in the power of attorney to prevent it from lapsing if the first named agent dies or is unable to serve.

There are various types of powers of attorney; they can be either general, durable or limited. Some states have also adopted a statutory power of attorney. A general power of attorney grants the agent broad powers to act in regard to the principal’s assets and property while the principal is alive and not incapacitated. A durable power of attorney will remain effective even if the principal becomes incapacitated. A special or limited power of attorney restricts the agent’s action to a particular purpose in order to handle specific matters when the principal is unavailable or unable to do so. A statutory power of attorney copies the language in a state statute which includes an example of a form that may be used. State laws vary, but the states that have adopted a statutory form of power of attorney typically allow for other language to be used as long as it complies with the state law. A power of attorney may be created for a limited time period and/or specific purpose, such as a Health Care Power of Attorney, Power of Attorney for Care and Custody of Children, Power of Attorney for Real Estate matters and Power of Attorney for the Sale of a Motor Vehicle.

By creating a power of attorney, the agent may sign documents, make decisions, and take necessary actions when the principal is unable to do so. While a power of attorney may be created in anticipation of a future need, such as military deployment, it also allows another to manage the principal’s affairs when unexpected events occur, such as an accident, illness or unplanned absence. Without a power of attorney, a spouse, parent or other interested party must petition the appropriate court to be appointed as guardian or conservator of the incapacitated person, which can be a time-consuming and expensive process.

Power of attorney requirements vary by state, but typically are signed by the principal and need to be witnessed and/or acknowledged before a notary public. Usually, powers of attorney do not need to be recorded. However, powers of attorney dealing with the sale and purchase of real estate must be recorded. In order to revoke, cancel, or end a power of attorney before it expires, the principal must sign a revocation of power of attorney and give a copy of the revocation to any person who might have or will possibly deal with the agent. Giving a copy of the revocation to people the former attorney-in-fact dealt with is to avoid an apparent authority situation.

A person has apparent authority as an agent when the principal, by his words or conduct (e.g., having granted power of attorney to former attorney-in-fact), leads a third person to reasonably believe that the person/agent has the authority that the agent appears to have, and the third person relies on this appearance of authority. The question of apparent authority is probably the most litigated question in agency law.

If a principal revokes a power of attorney that is recorded in the real estate records of a county, a revocation of that power of attorney should also be recorded in the real estate records.




Inside Power of Attorney