A power of attorney is a helpful document to have when you have a sudden illness or incapacity and can’t manage your own affairs. Learn the benefits of a power of attorney and how to create a valid one following Hawaii’s state laws.
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Frequently Asked Questions
- What Is a Power of Attorney?
- Who Can Be My Agent?
- What Can My Agent Do in Hawaii?
- What Is a Durable Power of Attorney in Hawaii?
- When Is the Power of Attorney Effective?
- When Does the Power of Attorney End?
- Does Hawaii Have a Statutory Power of Attorney?
- Can I Make My Own Power of Attorney in Hawaii?
- How Do I Make My Power of Attorney Valid in Hawaii?
- Do I Have to Notarize My Power of Attorney in Hawaii?
- What Should I Do After Signing My Power of Attorney?
- Does a Power of Attorney Agent Get Paid in Hawaii?
- Is My Hawaii Power of Attorney Valid in Another State?
- Can I Revoke My Hawaii Power of Attorney?
- What Estate Planning Documents Should I Have in Hawaii?
What Is a Power of Attorney?
A power of attorney (POA) is a legal document that allows one person, the “principal,” to appoint another person or entity as their “agent” or “attorney in fact” to act on their behalf in financial matters. You can find Hawaii’s rules for power of attorney in the Uniform Power of Attorney Act, §551e-1 through §551e-63.
You use different types of powers of attorney for different purposes. A financial power of attorney is for legal and financial matters such as bill paying, managing assets and property, and filing tax returns. A health care power of attorney, called an advance health care directive in Hawaii, covers both medical decisions and end-of-life wishes for treatment and care.
If you are suddenly unable to manage your affairs and don’t have a power of attorney, your family members will have to petition a court for a conservatorship. A court appoints a conservator with the legal authority to make your decisions. Having a power of attorney makes a conservatorship unnecessary.
Who Can Be My Agent?
In Hawaii, your agent can be any competent adult. You can select a family member, friend, or professional advisor. When choosing your power of attorney agent, above all, you want someone trustworthy. They should also be responsible and organized. An agent has a fiduciary duty to act in the best interests of the principal to avoid conflicts of interest.
It is not a good idea to name co-agents in your power of attorney. If you require your co-agents to act jointly, they may disagree, and nothing gets done. If you allow your co-agents to act independently, they may contradict each other’s actions and confuse outside parties. It is a better idea to name one agent as your primary agent and another as the backup or successor agent if your primary agent is unwilling or unable to serve.
What Can My Agent Do in Hawaii?
Your agent can perform a variety of actions that you specify in your power of attorney document, including handling real estate transactions, managing financial and bank accounts, and making decisions about personal and family maintenance. As outlined in §551e-34 through §551e-47, you can grant your agent general authority to handle the following transactions:
- Real property (real estate)
- Tangible personal property (possessions)
- Stocks and bonds
- Commodities and options
- Banks and other financial institutions
- Operation of entity or business
- Insurance and annuities
- Estates, trusts, and other beneficial interests
- Claims and litigation
- Personal and family maintenance
- Benefits from governmental programs or civil or military service.
- Retirement Plans
- Taxes
- Gifts
However, under §551e-31, there are certain areas that you must expressly authorize your agent to handle because they may allow your agent to reduce your estate. These subject matters include:
- Creating, amending, revoking, or terminating a living trust
- Making a gift
- Creating or changing rights of survivorship
- Creating or changing a beneficiary designation
- Delegating authority granted under the power of attorney
- Waiving the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
- Exercising fiduciary powers that the principal has authority to delegate
Your agent may think it is wise to reduce your estate to minimize your estate taxes or qualify you for government benefits such as Social Security or Medicaid. Talk to your agent about how you want them to handle your property and assets.
What Is a Durable Power of Attorney in Hawaii?
A durable power of attorney in Hawaii remains in effect even if you become incapacitated. This means your POA does not terminate if you can no longer make decisions for yourself. This durability ensures the ongoing management of your affairs. If you want your power of attorney to be durable, include a statement of durability such as “this power of attorney shall not be affected by my later incapacity.”
When Is the Power of Attorney Effective?
In Hawaii, under §551e-5, a power of attorney is effective when signed unless you specify in your document a future date or it is effective upon the occurrence of a future event or contingency, such as your incapacity, called a “springing” POA.
When Does the Power of Attorney End?
A power of attorney ends when the principal revokes it or dies. Other events terminate a power of attorney, such as
- The incapacity of the principal if the POA is non-durable
- There is a termination date
- The specified purpose of the POA is accomplished.
- The agent dies, resigns, or becomes incapacitated, and there is no successor agent.
In Hawaii, if your agent is your spouse and you file for divorce or annulment, their agent authority terminates unless you specify otherwise in your document.
Does Hawaii Have a Statutory Power of Attorney?
Yes. In §551e-51, Hawaii provides a statutory form. However, this is an optional form. You can create a power of attorney document yourself or hire an estate planning attorney.
Can I Make My Own Power of Attorney in Hawaii?
Yes. In Hawaii, you can create your own power of attorney. You want to use forms conforming to Hawaii law and follow the state’s execution requirements. Many people use state-specific online estate planning forms that they can tailor to their situation. But if you have questions about making a power of attorney, you should talk with an attorney for legal advice.
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How Do I Make My Power of Attorney Valid in Hawaii?
In Hawaii, you must be an adult, have your power of attorney in writing, and sign your power of attorney.
Do I Have to Notarize My Power of Attorney in Hawaii?
The statutes do not explicitly require a notary public to attest to your signature, but it is a good idea. A notary authenticates your signature and other states or third parties may not accept a non-notarized document. In fact, the Hawaii power of attorney form provides for a notary’s signature.
What Should I Do After Signing My Power of Attorney?
After signing your power of attorney, you should inform your agent about their appointment and discuss your expectations and the extent of their powers. You should also provide copies to financial institutions and anyone else who may need to recognize the authority of your agent. A financial institution or other third party may ask for an agent certification form in which your agent attests that your power of attorney is effective and they have the authority to act on your behalf.
Does a Power of Attorney Agent Get Paid in Hawaii?
In Hawaii, your agent receives reimbursement for reasonable expenses incurred under your power of attorney. Unless you state otherwise in your power of attorney, they may also be entitled to be compensated for their time.
Is My Hawaii Power of Attorney Valid in Another State?
Yes. Generally, other states will recognize a power of attorney created and executed according to the laws of the state of Hawaii.
Can I Revoke My Hawaii Power of Attorney?
Yes. If you are competent, you can revoke your power of attorney at any time. To revoke, make a written statement of revocation and provide copies to your agent and any other parties that rely on your original. Destroy your original power of attorney document.
What Estate Planning Documents Should I Have in Hawaii?
A financial power of attorney is important to help you and your family if you are suddenly incapacitated and can’t manage your affairs. You decide what powers to grant, who is in charge, and when the power of attorney begins and ends. However, for a complete estate plan, you should have a health care directive and last will and testament.
An advance healthcare directive incorporates a medical power of attorney and a living will. In your directive, you appoint your healthcare agent to receive your medical information and make healthcare decisions on your behalf. You can also detail your wishes for medical treatments and life-prolonging measures you want to be given or withheld when you have an end-stage illness or terminal condition.
A last will and testament is a legal document that instructs a probate court on how to handle your estate. In your will, you name someone to manage your estate, called a “personal representative,” and decide who inherits your property and who cares for your minor children. If you do not have a will, the court follows state intestacy laws to distribute your property and determines who cares for your children. Having a will keeps your choices intact and streamlines probate, saving your loved ones time and money in court.
Fortunately, with online estate planning templates, it is easy to make a valid power of attorney and create other estate planning documents in Hawaii.
