Most people don’t think about it until it happens: something prevents you from acting on your own behalf to do things that really need to be done. For one simple example, who will take care of your business in the U.S. while you spend three years on assignment in Europe? Or if you’re heading off to overseas military service, in a war zone, no less?
There are lots of reasons that people want to appoint an agent to act for them. Some involve only the simple and practical, like the examples above. Others involve advance planning of an estate, or for the time when you become physically and mentally incapable of acting for yourself.
The law provides a way for everyone who has the requisite mental capacity to elect another person – or persons – to act for them: creating a power of attorney (POA). In the law, the person who gives the power is known as the principal, while the person who receives the power is known as an agent or, more formally, as an “attorney in fact.”
Once the document is properly executed, the agent has full legal authority to act for the principal as to the matters covered by the POA.
To create a valid POA, the principal must, in plain English, know what he is doing. In legal terms, this means the principal must:
Since the agent becomes legally entitled to act on behalf of the principal, it is crucial that the principal select an agent who can be trusted to do what is in the interests of the principal, rather than using the power for his own benefit. Even in the case of family members, it is worth the time and expense of thoroughly investigating anyone you are thinking of naming as your agent.
Powers of attorney can be created to cover as broadly or narrowly as required to accomplish their purposes. In general, POAs can be either general of special:
Special powers of attorney can be as narrow and specific as granting the power to make decisions regarding a specific piece of real estate, or considerably broader, such as granting power over all bank and investment accounts.
By adding the appropriate language, both general and special powers of attorney can be made “durable” which simply means that the power continues after the principal becomes disabled, incompetent, etc., or in some cases, the power is triggered by that disability or incompetence.
A “durable health care” POA grants the agent the power to decide future health care issues in the event that you become too sick or too feeble to make them for yourself. Giving another person the power to decide such things as what care you receive at a time that you are incapacitated is obviously a serious act. Choosing the right agent is critical, and the power you are giving the agent should be described specifically.
It is in the best interests of both principal and agent – and of the many family members who are affected by your life and health – to have the document drawn by an experienced Sun City estate planning lawyer familiar with all the concerns of all parties, who can ensure that it meets all the requirements of the Arizona law that specifically governs this kind of POA.
Note that a living will is different from a power of attorney. Rather than giving power to an agent, the living will simply records your own wishes, at the time of the living will, as to health care in the event you become unable to communicate those wishes. The living will is usually accompanied by – and attached to – a durable health care power of attorney.
Arizona law provides for a very specific type of POA that grants the named agent(s) the power to exercise the principals’ parental rights for a specific amount of time. In the case of a principal who is on active military duty, the POA can last for one year. In all other cases, the POA must specify an end date no later than 6 months after the POA is created.
Powers of attorney are useful tools for many people, but need to be tailored to your needs and planned carefully. At the Sun City estate planning law firm of Gorman & Jones, PLC, our attorneys bring their collective decades of experience to bear on that task, whether it’s helping you decide whether to create a POA, which type to create, who to name as your agent, or dealing with problems that have arisen from a POA.
We always provide personal attention. Before we take any actions or recommend a course of action, we identify your concerns, bring other concerns to your attention, and make sure that you understand all your options, and how each one will affect your estate. Contact us online for legal counsel pertaining to power of attorney and all your other estate planning needs.
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