Drafting a power of attorney document is an important step in taking care of your estate plans and having the right tools to help you and your family in case you become incapacitated. One of those key documents in your estate plans is called a Power of Attorney, in which you give someone you trust the ability to take certain actions on your behalf. But how do you choose who that person (a.k.a. your “agent”) should be? Our estate planning law firm shares a few insights about choosing the right agent for your PoA document and explains how an attorney may help.
How Does a Power of Attorney Document Work?
In simple terms, a power of attorney document gives someone else the authority to act on your behalf as your agent. The document can give your agent permanent or temporary authority and can be as broad or as specific as you wish. The agent may be authorized to take certain actions for you such as selling your home or can be broadly defined and allow your agent to sign for you in most situations.
You can also determine if your PoA document will be effective immediately or will only kick in once you are deemed incapacitated by a medical doctor. You may also set clear rules as to how long your agent will be authorized to act on your behalf and may include a provision that automatically cancels the PoA if you regain your mental capacities. In other words, a power of attorney can be customized to your preferences – you choose who your agent is, what they can and can’t do for you, and for how long.
Do I Always Have to Choose a Family Member as an Agent?
Most commonly, people writing a power of attorney document tend to choose a relative or spouse as their agent. There is no rule that says you should always do that. While assigning your spouse, sibling, or child is the first choice for many, it is possible to choose someone else as your agent. Some people do not have a good relationship with their families, or have a close friend that they trust more than a sibling. As long as your agent is trustworthy and up for the task of representing you when you are unable to speak for yourself, you may choose anyone – family or not.
Regardless of who you select as your main agent, you may want to name successor agents as well. This way you will have someone else lined up in case your primary agent is unable or unwilling to act on your behalf. The American Bar Association suggests that you may also name co-agents as long as you indicate that you wish to have the majority act in the absence of full availability and agreement. As a reminder, the agent you choose cannot be a minor and cannot be incapacitated in any way.
What Kind of Powers Will My Agent Have?
The scope of authority your agent will have is totally up to you. You can choose to give your agent full permission to act on your behalf, or be more restrictive and list specific actions you authorize your agent to take while you are incapacitated. You may choose to have your agent take care of executing your estate plans and making annual gifts on your behalf. You may also give your agent authority to make financial decisions and transactions, sell your real estate properties, sign a contract on your behalf, and make other decisions regarding your medical care, assets, and property.
It is important to mention that there are certain things an agent cannot do — even if he or she was given broad authority to act on your behalf. The agent cannot make changes to your Last Will & Testament or break their duty of acting in your best interest. Your agent cannot make decisions for you after your death unless he or she is named as an executor on your Will, and even then your agent can only distribute assets on your Will according to your wishes. A PoA ends when the principal dies. Last, an agent can decline their appointment at any time but may not choose a replacement agent to take their place – the new agent must be appointed by the principal.
Do I Need an Attorney in Order to Write a PoA Document?
As you can see, there are many key decisions that you will need to make in order to write a Power of Attorney document that will work for you. Whether you choose a family member or not, you need to make sure this person is trustworthy and up for the task of being your agent. Next, you will need to decide what your agent will be able to do on your behalf – and making a mistake on this step can cause a lot of headaches later on.
While it is possible to write a PoA without the help of an attorney, it is simply too important of a document for you to try and do it yourself. An attorney can be essential in helping you walk through the entire process, define what powers you will give to your agent, and help point out potential mistakes or oversights. At Oren Ross & Associates, our attorneys can put their years of knowledge to work for you and help you write a PoA document that you can be confident about. Contact us to see how we can help.