In many situations, siblings are ideal power of attorney agents. For many siblings, there is a level of trust and a familiarity with circumstances and family dynamics, that an outsider would not be able to understand.
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In this article, we discuss how to get power of attorney to help your brother or sister manage their financial and medical affairs. However, they must be the ones to walk through the process to create the power of attorney.
If you’d like to establish decision-making authority over them, without their approval, then you will need to establish guardianship or conservatorship through the court system.
What Is a Power of Attorney?
A power of attorney (POA) is a legal document that an individual uses to appoint another person to act as their representative in specific matters. The person authorizing the other to act on their behalf is known as the principal, donor, or grantor. The decision-maker is known as the agent or attorney-in-fact.
In some cases, a POA document gives the agent power to make general decisions about matters that concern the principal. You can also give power of attorney to someone for specific decisions related to property, finances, investments, or medical care.
The primary idea of power of attorney is straightforward, but the rules of this type of document are nuanced. Here is a closer look at the factors involved in getting power of attorney over a sibling.
Types of Power of Attorney
There are different types of POA documents. If you need to get power of attorney over a sibling, you need to ensure that you are getting the correct decision-making controls so that you can manage your sibling’s affairs.
Here is a look at the different types of power of attorney.
1. General Power of Attorney
General power of attorney gives an agent broad authority to act on behalf of the principal. The details of this type of POA vary by state. In some places, the agent oversees all legal, financial, property, and healthcare matters. In others, a general power of attorney document only covers finances and property, and you need to create additional POA agreements if you want to manage your sibling’s other affairs.
There is one catch to general POA; it ends when your sibling becomes incapacitated. In some instances, you may not be able to make healthcare or estate decisions for your sibling with this general document.
2. Specific or Special Power of Attorney
A special power of attorney (also known as specific or limited POA) lets you act on behalf of the principal for a single specified task. For instance, you might get specific power of attorney over your sibling if you need to manage their bank account, manage their property, or oversee the sale of their business.
A limited POA document needs to provide the details of your powers and the circumstances in which you can use them.
Also, your sibling can give specific duties to different people. For example, you might get the power to make healthcare decisions, while your sibling can designate an accountant or lawyer to handle less-personal details like their day-to-day finances.
3. Durable Power of Attorney
A durable power of attorney, unlike most other POAs, does not end when the principal becomes incapacitated or legally incompetent. It will allow your sibling to choose an agent to make medical and financial decisions if and when they become unable to do so themselves.
Durable power of attorney is important because it eliminates the uncertainty about who gets to make the decisions for an incapacitated or critically ill sibling. Such major financial and healthcare decisions can be a source of tension and disagreements within the family.
4. Ordinary or Non-durable Power of Attorney
Ordinary power of attorney is also known as non-durable POA. It covers both general and specific powers of attorney, but all types of ordinary powers of attorney expire when the principal becomes incapacitated.
5. Springing Power of Attorney
A “springing” power of attorney is similar to a durable POA, but it only takes effect if the principal becomes incapacitated. Springing power of attorney gives an agent the authority to make financial or medical decisions on behalf of the principal in specific circumstances. It usually takes effect after the principal is unable to make independent decisions because of an illness, injury, or other condition.
People usually nominate their siblings, spouse, parent, or child for this job. As with a durable power of attorney, this document can define who gets to make critical decisions for the principal during what could be trying circumstances.
6. Power of Attorney for a Child
Power of attorney for a child allows you to act as a guardian if a minor’s current caretakers are unable to perform their duties. When you have POA over a child, you have many of the rights and responsibilities of a parent. You retain these rights until the legal guardian can care for the kids again, or they reach adulthood.
A parent or guardian can create rules or restrictions for POA involving children when creating the document. For instance, they may stipulate that the child must attend a specific school.
There are two ways power of attorney over children could involve your siblings. First, if your sibling is still a minor and your parents are unable to care for them, they may give you power of attorney. Second, if your sibling is an adult with their own children, they can give you power of attorney over their kids if they become incapacitated and cannot care for them.
7. Power of Attorney for Health Care
A power of attorney for healthcare gives you the right to make medical decisions for a sibling if they are incapacitated. This POA document is usually combined with a living will or healthcare directive.
As the agent for your sibling, you might be asked to make decisions about medication options, treatments, end-of-life care, and surgery. A healthcare POA can also help if your sibling is temporarily incapacitated or unconscious but stabilized, such as when they are recovering from an accident or other medical trauma.
It is important to create a healthcare POA document before your sibling becomes incapacitated and is unable to choose an agent and create the necessary documents.
8. Financial Power of Attorney
Financial power of attorney allows an agent to act on behalf of the principal in financial matters. The authority granted by the POA can be broad or limited to specific accounts or investments. For instance, in a broad financial POA, the agent can make any decisions they see fit regarding their sibling’s finances.
Limited financial POA documents may stipulate that you can only control specific aspects of your sibling’s finances. For example, your brother or sister may give you power of attorney over their property, business, or investments.
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Steps to Get a Power of Attorney Over a Sibling
1. The Sibling Selects Their Agent
Setting up powers of attorney for your loved ones and siblings is important because it allows them to state their wishes and designate decision-makers who can act on their behalf if they are unable to do so.
Your sibling can select their POA agent based on trust, and they can choose someone who they think has the right type of knowledge to make specific decisions. For example, if your sibling trusts you and knows you are good at managing money, they can give you financial power of attorney.
Your sibling will likely make sure that you are comfortable making the kind of decisions you could need to make if you have power of attorney.
2. The Sibling Chooses What Types of Authority To Give Their Agent
Your sibling needs to decide which powers to give you. If they are concerned about specific things, such as finances or their children, they can create a special POA document to address those particular areas.
Your sibling also needs to decide whether you want to use durable or general powers of attorney. If they are concerned about making decisions during an emergency, they should opt for a durable power of attorney document.
Finally, a sibling can decide to give different POA duties to different people. For example, one sibling may focus on financial matters, while another one could be responsible for their brother or sister’s kids.
3. The Sibling Uses a Power of Attorney Form
Your sibling will need to fill out a state-specific form that is tailored to their needs. Many people create both a financial power of attorney and a healthcare power of attorney (also called a healthcare directive and living will).
Most states provide blank power of attorney forms for free on their .gov websites. While these forms are similar in every state, you need to make sure that the one you get covers the type of POA you need, and that you provide all the necessary details to make the document legally binding.
4. The Sibling Signs Their Power of Attorney With Witnesses and/or a Notary Public
Your sibling needs to sign the POA form before it is legally valid. The process requires a notary and/or witnesses depending on your state’s laws. While most states require the principal and the agent to sign the POA form in front of a notary public, others require an additional witness.
A notary verifies your identity by checking your ID and witnesses the document signing, making it legally binding.
5. The Sibling Delivers Their Power of Attorney to the Necessary People
The final step to get power of attorney over a sibling is to file the necessary documents. The filing requirements vary by state. In many cases, a power of attorney form is valid as soon as it has been signed and notarized. The parties should each keep a copy of the form. You can also consider giving a copy to a lawyer or other family member for safe-keeping.
In some cases, such as those involving the transfer of property or guardianship of children, you need to file documents with your local court.
When To Get Power of Attorney Over a Sibling
It is best to sort out the details of power of attorney documents before they are necessary. In some cases, a sibling may find out that they have an illness or need a medical procedure. They may decide that they need to give you power of attorney to make decisions for them if there is a risk that they will be unable to do so themselves.
In some cases, your sibling might be incapacitated due to an accident or some other emergency. If this happens, it is too late to draft and sign POA documents and you will need to go through the courts. However, you can be proactive to avoid this issue. If your sibling has a growing family, a successful business, investments, or a significant inheritance, you can get them to create the necessary power of attorney documents to give you decision-making responsibilities in these specific areas.
Do I Need a Lawyer to Get Power of Attorney Over a Sibling?
If your sibling is creating a simple power of attorney, they will not necessarily need a lawyer. They can fill out a simple form and list you as their agent. If, however, you have a complex family situation, you may need a lawyer’s advice. This is particularly true if you want to get power of attorney over them without their approval; in that case, it is a good idea to have a lawyer’s support during guardianship proceedings.