How to Prepare a Power of Attorney

Co-authored by Clinton M. Sandvick, JD, PhD

Last Updated: April 8, 2021 References

This article is written for persons in the United States. Powers of Attorney in other jurisdictions have different requirements, and are used for different purposes, so it is important for you to check the laws of your local jurisdiction if you are not living in the United States.

In the United States, a Power of Attorney is a legal document whereby a person gives another person or people written authority to make decisions on their behalf with regard to their financial affairs, their health and personal welfare, or some other legal matter. A power of attorney is useful if you have a physical illness or injury, or you want someone to make decisions for you in the event that you become incapacitated. You can also use a power of attorney document if you plan to go abroad and you want someone else to look after your affairs in your absence.

Part 1

Part 1 of 5:

Deciding When to Use a Power of Attorney Document vs. Seeking Guardianship

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Talk to your loved ones about a power of attorney document. If you want your loved one to have the power to make decisions for you, talk to them about why you want them to have this control. Make sure you choose someone who will respect your wishes as your “agent,” or the person to whom you are giving the power.^{[1]
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- If you want to get power of attorney over someone, the simplest way to do so is to get the permission of the person who may need to turn over his or her decision-making rights.
- If your loved one is terminally ill and knows that the time may come when he or she won't be able to make financial or medical decisions, he or she may decide to sign over power of attorney to someone else.
2
Choose between a power of attorney document and seeking guardianship. In order for someone to grant power of attorney, he or she must be of sound mind. Talk to your loved one to make sure he or she understands what it means to sign over power of attorney, including what types of decisions will be made on his or her behalf.^{[2]
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- If your loved one is already mentally incapacitated, but previously granted power of attorney to you or someone else in a living will, it is unnecessary to take steps to obtain power of attorney.^{[3]
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- If your loved one is already mentally incapacitated and did not grant power of attorney in a living will, it may be necessary to obtain conservatorship, or adult guardianship, in order to legally carry out your loved one's affairs.^{[4]
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Consider seeking guardianship or conservatorship. If you believe that you should have control over the decisions of someone who is unable to make decisions for himself, you must go to the court and ask to be appointed as a conservator or guardian. To become a guardian of someone, they must be deemed “legally incompetent” by the court. That is, they must not be able to meet their own basic needs. If you believe that you know someone who can meet the criteria for incompetent, you may petition the court to be named guardian.
- The district court in the county where the proposed ward lives has jurisdiction over the guardianship petition. Once the petition is file, the court will schedule a hearing where the proposed guardian must establish:
  - That he or she is eligible to serve as guardian
  - That the proposed ward is incompetent
  - That no suitable alternatives to guardianship are feasible
- Any interested party, including the proposed ward, may challenge the guardianship petition. For example, if you believe that your elderly mother has dementia and you should be appointed guardian, you can file a petition with the court but your mother can challenge your guardianship, and you must then prove that she does in fact have dementia in order to become guardian.

Part 2

Part 2 of 5:

Determining the Correct Type of Power of Attorney

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Decide if the power of attorney should be financial. A financial power of attorney relates to the finances of the principal, meaning the person who grants the power to control his or her assets to the agent. You would have to provide this document to banks and other institutions where the agent needed to take financial action on behalf of the principal.
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Decide if the power of attorney should be medical. A healthcare power of attorney enables someone to make medical decisions for a person who has become incapacitated. You would need to provide the document to hospitals, doctors, and anyplace else that the agent will need to make medical decisions for the principal.
- If you want to grant both financial and medical powers of attorney, remember that you do not need to same the same person as the agent in both circumstances. However, the two people will need to cooperate to act in your best interests, so choose people who can do so.
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Determine if the power of attorney should be “durable.” A “durable” power of attorney goes into effect immediately. It also remains valid when the person who grants it becomes incapacitated.^{[5]
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- For example, many seriously ill people choose a durable power of attorney because they want their agent to continue to make their decisions after they can no longer communicate their wishes, and, because of their illness, want the power of attorney to go immediately into effect.
- If the word ‘durable’ is not specified, the power of attorney is voided when the person who granted it becomes incapacitated.
4
Determine if the power of attorney should be “springing.” A “springing” power of attorney doesn’t go into effect until the principal’s specified date. For instance, if you want to grant someone financial power of attorney while you plan to be out of the country, you can specify that the document takes effect on the day you leave.
- You can also mix springing and durable powers of attorney. A springing durable power of attorney does not go into effect until the person who grants it specifies that it will go into effect (such as once the person becomes incapacitated) and will remain in effect through the person’s incapacitation.^{[6]
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  Research source} This does require that the agent show proof of the person’s incapacitation before the power of attorney will take effect.
  - This type of power of attorney is not legal in all states, so make sure you check your particular state laws before attempting to draft a springing durable power of attorney.
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Avoid a general power of attorney unless you’re certain. A general power of attorney may give the agent both financial and medical power of attorney. Ensure that you use the correct document for your circumstances. In some situations, such as with serious illness, a general power of attorney might make the most sense.

Part 3

Part 3 of 5:

Choosing Someone as Your Power of Attorney

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Choose someone you trust. Whoever you appoint as your agent will have the power to make financial and/or healthcare decisions for you. You want to make sure that you trust the person that you choose, and additionally, that they have the necessary expertise with regard to the financial and medical matters.
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Consider the age, health, and location of potential agents. Keep in mind that whoever you appoint as your agent will be making extremely important decisions in your stead. Consider the age, health and location of the potential agent.
- For example, if the agent does not live near you, it may be difficult for that person to have the required relationship with your banks (if the power of attorney is financial) or your doctors (for a medical power of attorney).
3
Consider the agent’s religion and lifestyle preferences. While you should first and foremost choose someone who you trust, you want to make sure that the person will not refuse to carry out your wishes based on their own moral or religious views. Make sure that your agent could set aside any personal beliefs in favor of your wishes.
- For example, some people are very opposed to cardiac resuscitation, mechanical resuscitation, and artificial nutrition and hydration, while others strongly believe in these practices.

Part 4

Part 4 of 5:

Preparing a Power of Attorney Document

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Check your state’s requirements. Requirements for a power of attorney are similar in most states, but some have special forms to fill out. To check whether or not your state has special forms for power of attorney, you can check here. If your situation is complicated, consider hiring an attorney to help you and your loved ones carry out the proper requirements for granting power of attorney. Usually, the document granting power of attorney must:
- Clearly identify the principal (the person who is granting the power)
- Clearly identify the agent (the person who will have the specified powers)
- Specify exactly what legal acts the agent is entitled to perform
2
Download or write a power of attorney form. Most states don't require government-written legal documents. However, in order to prevent any confusion and to make sure that both parties know exactly what authority is being granted, it's a good idea to use a state-issued form as a template.
- The specifics of the form will vary by state, and each state may have a different form for different powers. For example, Wisconsin provides different forms for a health care power of attorney and financial power of attorney.^{[7]
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Name the parties. The form should include the full name of the “principal,” the person granting power of attorney. It should also name the "agent," the person to whom the power is being granted.^{[9]
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Research source} Alternate agents may also be named, in the event that the first agent is unable or unwilling to act on his or her authority.
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Name the powers granted. Make sure that you clearly and specifically identify the powers that are being granted to the agent, when those powers will take effect, and when (if ever) those powers will cease to have an effect.^{[10]
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Research source} This is also the space where you will include whether the document is durable or springing if either is applicable. This will prevent confusion.
- For example, instead of saying that the agent “has power over the principal’s finances,” say that the agent “has the power to withdraw money and make payments from the principal’s three bank accounts: bank account X, bank account Y, and bank account Z.”
- If the power of attorney is durable, it's especially important to make sure that the principal and the agent are in agreement about what responsibilities and authorities are being transferred.
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Note powers that a principal cannot confer. Make sure that the principal and agent know that some powers cannot be conferred under state law. If the power of attorney purports to transfer a power under state law that cannot be transferred, the power of attorney is void as to that power.
- For instance, even if the principal and the agent agree, the agent cannot write or execute a will for the principal. Any such will is not valid.
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Gather witnesses. In some states, it is necessary to have the signing of the document witnessed by one or two people.^{[11]
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Elder Law: Cases and Materials, LexisNexis, Fifth Edition (See chapter 9, “Guardianship”).} If this is the case in your state, make sure witnesses are not only present but paying full attention as the agent and the principal sign the document. The witnesses should be comfortable testifying as to the document’s authenticity.
- For instance, in Florida, a power of attorney document must be signed by two witnesses, whereas Utah does not require witnesses.^{[12]
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- Check here to find out if your state requires a power of attorney document to be signed by witnesses.^{[14]
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Prepare a Revocation of Power of Attorney if you change your mind. If you draw up a power of attorney that hasn't expired, but you no longer want it to be in effect, you can draw up this form according to your state's laws to have it invalidated. Talk with your attorney to make sure it's done correctly.
- You can find more information at: How to Revoke Power of Attorney

Part 5

Part 5 of 5:

Protecting Your Power of Attorney Document

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Consider hiring an attorney to review the document. An attorney may notice legal issues that people who aren't trained in legal matters would not think to include or leave out.^{[15]
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Wills, Trusts & Estates, Dukeminier, Eighth Edition (pgs. 335-340; 448-457).} For example, an attorney may notice that the document uses language that could been seen as ambiguous and could lead to confusion.
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Have the document notarized. Some states might not require you to have the document notarized. However, having the principal’s signature notarized eliminates any doubt regarding the validity of that signature. The notary must verify the identity of the principal before witnessing the signature. Notarizing the power of attorney document reduces the chance that it will be contested by an outside party who may question its validity.^{[16]
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- You can find more information about notarizing a document at: How to Notarize a Power of Attorney
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Show the document to any institutions you want to recognize it. Financial institutions, such as banks and brokerage firms, do not want to inadvertently accept fraudulent power of attorney documents. They have requirements that must be met in order to accept the document and give the agent the powers listed. In order to make sure that your document is sufficient, show it to your bank and other financial institutions before signing it, to make sure that they will accept it after it is signed.
4
Save the power of attorney document. A power of attorney is not filed at any governmental agency, but you must have it on hand to present it every time you use it. Keep it in a safe in your home or in a safety deposit box until the time comes when you need to bring it out.

Warnings

This article is for information purposes only. If you have additional questions about a general power of attorney, you should consult a lawyer.

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