A power of attorney is a legal document. It allows one person, called an agent, to act on behalf of another, called the principal. Another name for agent is "attorney-in-fact." An agent is a fiduciary. This means that your agent must act in your best interests.
What is the purpose of a power of attorney?
A financial power of attorney gives your agent the legal authority to manage your financial affairs on your behalf. This normally includes signing checks, paying bills, depositing checks, signing tax returns, etc.
Because your agent is a fiduciary, they must act in your best interest and manage your money and property for your sole benefit.
A fiduciary must be trustworthy, honest and act in good faith. There are four basic duties of a fiduciary. Your agent must:
- Act only in your best interest and avoid self-dealing and conflicts of interest.
- Manage your money and property carefully.
- Keep your money and property separate from theirs.
- Keep good records.
A health care power of attorney gives your agent the legal authority to make decisions as to your health and medical care. Sometimes a health care agent is also called a health care proxy.
A power of attorney for the care and custody of a minor child gives your agent the legal authority to make parental decisions as to your minor child including health and medical care.
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What are the different types of powers of attorney?
There are generally four different types of powers of attorney:
- Health care sometimes called a "health care proxy", and
- Care and custody of a minor child.
A health care power of attorney is only effective if you are unable to communicate or a doctor examines you and determines that you are unable to manage your own affairs.
Immediate v. springing power of attorney
A financial power of attorney can either be effective immediately or after you are incapacitated.
If your power of attorney is effective immediately, your agent can do anything with your money and property that you can do. This type is most common for married couples or if an adult child is taking care of an adult family member or friend.
A financial power of attorney that is not effective immediately is commonly known as "springing," as the agent's powers spring into effect when you are incapacitated. A springing power of attorney requires that a doctor examine you and decide that you are unable to manage your own affairs.
Do I need a power of attorney for my child?
Yes. If you ever leave your minor child with a relative or friend for longer than a couple days or you leave the country, you should prepare a power of attorney for the care and custody of your child.
This document gives your agent the legal authority to make parental decisions as to your minor child including health and medical care.
What happens to my power of attorney when I die?
Your power of attorney is only effective while you are alive.
While your agent can make decisions as to the donation of your organs and/or body, consent to an autopsy, and choose and control the disposition of your remains, your agent has no power to act as to your money and property after your death.
This is why you need to make sure that your beneficiary, transfer-on-death, and pay-on-death forms are up-to-date.
What are the limitations of a power of attorney?
The power of your agent under a financial power of attorney terminates if you become incapacitated unless it is "durable."
For estate planning purposes, a financial power of attorney is normally durable so that your agent can act on your behalf after you become incapacitated.
You can limit the power of your agent in your power of attorney but be careful because if your agent is prohibited from doing something for you it may be necessary to go to court to appoint a guardian and or conservator to act for you.
In Missouri there are a number for powers which must be specifically included in your power of attorney if you want your agent to be able to act for you. These include:
- The removal of life support systems
- The withdrawal of artificial nutrition and hydration
- The donation of your organs and/or body
- The consent to an autopsy
- The burial or cremation of your remains
- The ability to make gifts of your money or property
- The ability to change your estate plan and/or beneficiary designations and ownership of assets
- The ability to execute, amend or revoke your trust agreement
In Missouri, your agent is not allowed to make, amend, or revoke your Will or your advance directive/living will.
Can a power of attorney be changed or revoked?
Yes. If you still have capacity, you can revoke an existing power of attorney.
But once you have been declared incapacitated it is no longer possible to change or revoke your power of attorney.
What if my agent can't serve?
Nobody can be forced to act as your agent. Even if your agent initially agrees to serve, he or she can change their mind later and resign as your agent. As a result, it is best to name one or more successor agents to act.
Can I make a power of attorney myself?
Nothing prevents you from making your own power of attorney. In fact, you may have signed a health care power of attorney at the hospital if you were recently admitted for surgery.
If you would like to make a health care power of attorney on your own, The Missouri Bar provides a 16-page booklet. It has frequently asked questions and answers, instructions, and forms that you can download and complete that includes a power of attorney, health care directive and HIPAA privacy authorization form.
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