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Power of Attorney – Do You Need One?

Woman meeting with attorneys

Adults with learning disabilities are often legally competent to handle their own day-to-day affairs. However, a person with a disability may wish to have some assistance from a parent, sibling, spouse, or friend in handling certain complex or extraordinary matters.

For example, an individual with dyscalculia may desire the help of another person in handling financial affairs. Similarly, an individual with a psychiatric disorder may benefit from assistance in making medical treatment decisions, especially if the individual may be deemed incompetent to make medical decisions for periods of time in the future.

Arrangements for this help cannot always be handled informally. For example, in the context of making medical decisions, privacy laws, including the Health Insurance Portability and Accountability Act of 1996 (commonly known as “HIPAA”), may prevent another person from accessing the individual’s medical records and information.

The durable power of attorney may provide a solution.

Many of us are familiar with the use of a durable power of attorney (“POA”) to allow a family member to act for an elderly parent who is no longer able to manage personal, financial, and/or medical affairs without assistance. However, the POA may be used far more broadly. For example, if an individual will be outside the United States for an extended period of time, he or she may execute a POA designating a trusted person to handle matters of all types that arise during such absence. Similarly, an individual with a disability that negatively impacts functioning in a particular area may find it helpful to execute a POA granting a designated person the authority to handle matters in that area.

What is a power of attorney?

A POA is a document that an individual (often called the “grantor”) executes in order to appoint a trusted friend or family member to act for the grantor. The person appointed is called the “attorney-in-fact” or the “agent” of the grantor. Often, a second person is designated to act as attorney-in-fact, in the event that the first person cannot perform the duties. An attorney-in-fact does not need to have a law degree or a law license.

A POA can be general, or it can set forth specific functions that the attorney-in-fact may perform. These areas include personal matters, financial decisions, and medical affairs. There may be one comprehensive POA granting the attorney-in-fact the authority to act in all of the specified areas, or there may be separate POAs for each area.

What does “durable” mean?

The term “durable” means that the POA shall continue in effect even if the grantor is subsequently deemed incompetent. This means that the POA will be effective from the date of execution until the grantor either revokes the power or until the grantor dies. Competence to execute the durable power depends upon the ability of the grantor to understand what he or she is doing at the time the power was executed. This is the principle advantage of the durable POA over the non-durable POA, which ceases to be effective if the grantor is deemed incompetent.

Language to make the POA “durable” must appear in the POA. The necessary wording varies from state-to-state, but often indicates that the POA shall remain in full force and effect despite disability, incompetence, or incapacity (whether mental or physical) of the grantor, until the revocation of the POA by the grantor or the death of the grantor. A licensed and experienced legal practitioner can help you determine exactly what is required to make a POA durable in your location and circumstances.

What financial powers can be granted by a power of attorney?

A POA can grant the attorney-in-fact the authority to handle a wide variety of financial matters and tasks. Some everyday examples might include signing checks from the grantor, endorsing and depositing checks made out to the grantor, and otherwise managing the grantor’s finances. The attorney-in-fact may also be authorized to buy and sell stocks, bonds, and real property on behalf of the grantor. Finally, POAs often authorize the attorney-in-fact to represent the grantor in tax matters, to handle insurance matters for the grantor, and to retain counsel to otherwise protect the grantor’s interest.

What medical powers can be granted by a power of attorney?

A POA can grant the attorney-in-fact the authority to make a number of medical decisions. For example, the POA might enable the attorney-in-fact to authorize admission of the grantor into hospitals, to agree to medical care for the grantor, and to authorize the withholding or termination of medical treatment for the grantor.

How do you obtain a durable power of attorney?

Some states have durable medical POA forms and living will forms available online at no charge. It may be prudent, however, to consult with your attorney to determine whether a durable POA is the best course of action for you. This will enable your attorney, if appropriate, to develop a POA tailored to your specific circumstances.

This article has been prepared for general information purposes only.  The information presented is not legal advice and is not to be acted on as such.

This article was generously written and provided by White & Case LLP.

Last Reviewed and Updated: 12/11/2018