Signing a power of attorney document gives someone (an agent) legal authority to act on behalf of another (the principal). But what rights does an agent have? The decisions and actions will depend on the authority granted in the power of attorney form. The type of power of attorney (POA) determines when the agent’s authority begins and ends.
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- A limited power of attorney gives the agent authority for a specific timeframe or task. For example, the agent may act on behalf of the principal in a real estate purchase. They take on the role of attorney-in-fact and can sign legal documents related to that purchase. Once the purchase is complete, their authority ends. Or a power of attorney can be dated when the principal is unavailable (for example, traveling outside the country). The power of attorney is limited to that specific timeframe.
- A springing power of attorney becomes effective when an event or particular situation occurs. Usually, that situation is the principal’s incapacity, meaning when the principal can no longer manage their affairs.
- A durable power of attorney is effective once signed unless another date is specified. This power of attorney remains in effect even if the principal is subsequently incapacitated, thereby making it “durable.” This type of power of attorney ends upon the principal’s or by revocation by the principal.
This article looks at the rights provided by a durable power of attorney document.
The Power of Attorney Form Defines the Powers Given
There are generally three purposes for which a person creates a power of attorney:
- To handle finances
- To handle medical decisions
- To handle all decisions in case of incapacity (addressing both financial and medical decisions)
Financial Power of Attorney
A financial power of attorney gives an agent authority to handle financial matters on behalf of the principal. The agent has a fiduciary duty to act in the principal’s best interest in all financial affairs.
Within the financial power of attorney document, the principal authorizes the agent to:
- Buy or sell real estate
- Manage stocks, bonds, securities, and financial investments
- Exercise rights to buy or sell securities
- Handle all banking activities
- Access a safe deposit box
- Take out a loan
- Manage a business entity or buy or sell a business
- Buy or sell insurance policies (Note: They can’t change the beneficiary of an insurance policy.)
- Make changes to an interest in an estate or trust
- Defend a claim or lawsuit or initiate a claim on the principal’s behalf
- Pay bills, tuition, etc. to support the family’s standard of living
- Handle government benefits such as Medicare, Medicaid, Social Security, and military benefits
- Manage retirement benefits, pensions, and annuities
- Prepare, file, and pay taxes
The agent has the right to access all bank accounts, investment accounts, and retirement accounts.
The agent has the right to buy and sell, move funds, invest, etc. However, they do not have the right to change beneficiaries on life insurance policies, payable-on-death accounts, or trust funds unless specifically given those rights.
The agent does not have a right to access assets in a living trust unless the principal specifically authorizes it. The agent can not access assets in a non-revocable trust.
Power of Attorney for Health Care
A medical power of attorney gives a trusted person the right to make health care decisions. In some states, this person is called a healthcare proxy or a healthcare surrogate.
Usually, the agent is a family member. They typically are not healthcare providers and do not have medical knowledge themselves. Ideally, they have been informed of the person’s wishes either verbally or through a living will or advance healthcare directive.
Within the health care power of attorney document, the principal authorizes the agent to have to right to:
- Access medical information and records
- Make medical decisions
- Authorize medical procedures and treatment
- Choose a hospital or nursing home
- Follow instructions left by the principal
A person serving as a healthcare proxy needs to be able to access medical information. They must be authorized to talk to doctors. HIPAA rules make that difficult if the principal doesn’t also have a signed HIPAA release form.
General Power of Attorney
A general power of attorney gives an agent broad power to make financial decisions, day-to-day decisions, and medical decisions. Essentially, the agent can make all life decisions for an incapacitated person.
They have the same rights over financial affairs as a probate court grants a conservator of the estate. They can work with the person’s financial institutions to manage their finances. They can buy and sell real estate or a family home (if the POA document specifically states as much).
But they also have a right to make decisions for a person such as where and with whom the person lives, what medical treatment they will receive, etc.
Persons suffering from dementia or adult children with severe disabilities may benefit from a general power of attorney. A family member can manage a severely disabled person’s affairs without going through a court proceeding to gain conservatorship.
Need Legal Advice on Estate Planning and POAs?
If you would like to learn more about the rights and responsibilities a power of attorney document provides, talk with an estate planning lawyer or elder law attorney in your area. If you would like help drafting a power of attorney, see FindLaw’s Estate Planning Forms section for cost-effective assistance with a POA.