Completing a Power of Attorney

Choices to Make When Completing a Power of Attorney Form

A Power of Attorney (POA) form offers a great deal of flexibility.  When completing a POA form, the principal (the person giving the authority) will need to make some choices.  These choices include what the principal wants to authorize his/her agent to do, when the POA will take effect, how long the POA will last, and whether the principal wants to name co-agents or alternate agents.  These options are described below.

What can the agent do?

The POA can be general or limited.  A general power of attorney means that the agent has the authority to do any task that the principal could do. For instance, the agent could manage the principal’s bank account, speak with a landlord, or apply for public benefits.

In contrast, a limited power of attorney is restricted to one or more tasks outlined in the form. Let’s say you’re a commercial fisherman and you want your brother to sell your car while you’re out fishing. You could give your brother a limited power of attorney for the specific purpose of doing that. He would not be able to access your bank account or conduct any other business for you.

When will the POA take effect? 

If you’re completing a power of attorney form, an important choice you’ll have to make is whether the POA takes effect immediately or only upon your incapacity. 

If you’re a person who currently needs a lot of assistance, or if there’s something you need someone else to do for you now, you probably want your power of attorney to take effect right away –upon your signature.  That way, the person you name as your agent can start acting on your behalf immediately.

If you are a healthy person and don’t want anyone acting on your behalf until it’s necessary, you’d choose the option for the POA to only take effect upon your incapacity. This is called a “springing” POA because it springs into effect only when you become incapacitated.

How long is the POA valid?

When you complete the POA form, you will need to decide whether the POA is for a limited time or unlimited time.  There are two different ways a POA can be limited by time.  One way is for the principal to pick a date on which it will no longer be valid.    If John wanted to give Sam his POA to sell his car while John’s at fish camp, he might limit his POA to the two months he’ll be gone.  Another way is related to when you’ve chosen the POA to begin.  If you’ve decided that you want the POA to go into effect upon your signature, you also need to decide whether it will remain in effect upon your incapacity. If you do not indicate that a POA remains effective upon incapacity, then it is revoked upon incapacity.

In contrast, a POA can be “durable,” which means your agent’s authority remains even if you become incapacitated.  Your POA can be durable regardless of whether it became effective upon your signature, or was a “springing” POA that only became effective upon your incapacity.  It is important to remember that if you choose to have your POA become effective upon the date of your signature, AND you want it to remain in effect if you become incapacitated, you must indicate this on the form.  This is covered in more detail in the document “Completing Alaska’s Power of Attorney form.”

A couple notes on incapacity:

If you choose to make your POA a springing POA (that is, your agent’s power only begins upon your incapacity) or a durable POA (your agent’s power continues even after you become incapacitated), it is important to know how “incapacity” is defined and how it would be determined that you are incapacitated.

“Incapacity” means a person’s ability to receive and evaluate information, or to communicate decisions, is impaired to such an extent that he/she is unable to manage his property or affairs.  Impairment can occur as the result of many factors, such as mental illness, mental deficiency, physical illness, physical disability, advanced age, use of drugs, chronic intoxication, or other similar medical or psychological reasons.

If you decide that your agent only assumes power when you become incapacitated, your incapacity would be established by the affidavit of two doctors or similarly qualified individuals who have personally examined you.  If you’ve decided that your agent’s power ends when you become incapacitated, your incapacity would be established in the same way.  

What are co-agents and alternates?

Last, you can name co-agents and alternates – but you don’t have to! Let’s say you have two daughters and want them both to have the power to act on your behalf. You can name them both as your co-agents. But if you appoint co-agents, you have another decision to make:  Whether each agent can act alone, without getting approval from the other, or if they must act together, jointly. 

While there may be good reasons to appoint co-agents, in general, appointing only one agent is simpler.  For example, if your co-agents act independently, keeping financial records straight could be a problem.  Also, if there’s disagreements about how to handle something, both have authority to do what they think best, which can create more confusion.  Yet requiring your agents to act jointly can also create problems.  For instance, if you name two people as your agents and they are trying to sell your house, both of them would need to sign all the paperwork, which could be difficult if one of them lives in a different state or even different town. 

Another option is to name a second person as an alternate agent in case your first agent is unable or unwilling to serve. Or you can name a primary agent and a second person as an alternate in case the primary is unable or unwilling to act. 

But remember, the POA form offers a great deal of flexibility, and the choices are yours to make, according to what works best for you.