Show An important part of lifetime planning is the power of attorney. A power of attorney is accepted in all states, but the rules and requirements differ from state to state. A power of attorney gives one or more persons the power to act on your behalf as your agent. The power may be limited to a particular activity, such as closing the sale of your home, or be general in its application. The power may give temporary or permanent authority to act on your behalf. The power may take effect immediately, or only upon the occurrence of a future event, usually a determination that you are unable to act for yourself due to mental or physical disability. The latter is called a "springing" power of attorney. A power of attorney may be revoked, but most states require written notice of revocation to the person named to act for you. The person named in a power of attorney to act on your behalf is commonly referred to as your "agent" or "attorney-in-fact." With a valid power of attorney, your agent can take any action permitted in the document. Often your agent must present the actual document to invoke the power. For example, if another person is acting on your behalf to sell an automobile, the motor vehicles department generally will require that the power of attorney be presented before your agent's authority to sign the title will be honored. Similarly, an agent who signs documents to buy or sell real property on your behalf must present the power of attorney to the title company. Similarly, the agent has to present the power of attorney to a broker or banker to effect the sale of securities or opening and closing bank accounts. However, your agent generally should not need to present the power of attorney when signing checks for you. Why would anyone give such sweeping authority to another person? One answer is convenience. If you are buying or selling assets and do not wish to appear in person to close the transaction, you may take advantage of a power of attorney. Another important reason to use power of attorney is to prepare for situations when you may not be able to act on your own behalf due to absence or incapacity. Such a disability may be temporary, for example, due to travel, accident, or illness, or it may be permanent. If you do not have a power of attorney and become unable to manage your personal or business affairs, it may become necessary for a court to appoint one or more people to act for you. People appointed in this manner are referred to as guardians, conservators, or committees, depending upon your local state law. If a court proceeding, sometimes known as intervention, is needed, you may not have the ability to choose the person who will act for you. Few people want to be subject to a public proceeding in this manner so being proactive to create the appropriate document to avoid this is important. A power of attorney allows you to choose who will act for you and defines his or her authority and its limits, if any. In some instances, greater security against having a guardianship imposed on you may be achieved by you also creating a revocable living trust.
You may wish to choose a family member to act on your behalf. Many people name their spouses or one or more children. In naming more than one person to act as agent at the same time, be alert to the possibility that all may not be available to act when needed, or they may not agree. The designation of co-agents should indicate whether you wish to have the majority act in the absence of full availability and agreement. Regardless of whether you name co-agents, you should always name one or more successor agents to address the possibility that the person you name as agent may be unavailable or unable to act when the time comes. There are no special qualifications necessary for someone to act as an attorney-in-fact except that the person must not be a minor or otherwise incapacitated. The best choice is someone you trust. Integrity, not financial acumen, is often the most important trait of a potential agent.
Assume Michael Douglas appoints his wife, Catherine Zeta-Jones, as his agent in a written power of attorney. Catherine, as agent, must sign as follows: Michael Douglas, by Catherine Zeta-Jones under POA or Catherine Zeta-Jones, attorney-in-fact for Michael Douglas. If you are ever called upon to take action as someone’s agent, you should consult with an attorney about actions you can and cannot take and whether there are any precautionary steps you should take to minimize the likelihood of someone challenging your actions. This is especially important if you take actions that directly or indirectly benefit you personally.
In addition to managing your day-to-day financial affairs, your attorney-in-fact can take steps to implement your estate plan. Although an agent cannot revise your will on your behalf, some jurisdictions permit an attorney-in-fact to create or amend trusts for you during your lifetime, or to transfer your assets to trusts you created. Even without amending your will or creating trusts, an agent can affect the outcome of how your assets are distributed by changing the ownership (title) to assets. It is prudent to include in the power of attorney a clear statement of whether you wish your agent to have these powers. Gifts are an important tool for many estate plans, and your attorney-in-fact can make gifts on your behalf, subject to guidelines that you set forth in your power of attorney. For example, you may wish to permit your attorney-in-fact to make "annual exclusion" gifts (up to $14,000 in value per recipient per year in 2013) on your behalf to your children and grandchildren. It is important that the lawyer who prepares your power of attorney draft the document in a way that does not expose your attorney-in-fact to unintended estate tax consequences. While some states permit attorneys-in-fact to make gifts as a matter of statute, others require explicit authorization in the power of attorney. If you have older documents you should review them with your attorney. Because of the high estate tax exemption ($5 million inflation adjusted) many people who had given agents the right to make gifts may no longer wish to include this power. Others, however, in order to empower their agent to minimize state estate tax might continue or add such a power. Finally, there may be reasons not to limit the gifts your attorney-in-fact may make to annual exclusion gifts in order to facilitate Medicaid planning or to minimize or avoid state estate tax beyond what annual exclusion gifts alone might permit. In addition to the power of your agent to make gifts on your behalf, many powers of your attorney-in-fact are governed by state law. Generally, the law of the state in which you reside at the time you sign a power of attorney will govern the powers and actions of your agent under that document. If you own real estate, such as a vacation home, or valuable personal property, such as collectibles, in a second state, you should check with an attorney to make sure that your power of attorney properly covers such property.
Generally, a power of attorney that is valid when you sign it will remain valid even if you change your state of residence. Although it should not be necessary to sign a new power of attorney merely because you have moved to a new state, it is a good idea to take the opportunity to update your power of attorney. The update ideally should be part of a review and update of your overall estate plan to be sure that nuances of the new state law (and any other changes in circumstances that have occurred since your existing documents were signed) are addressed.
Some states used to require the renewal of a power of attorney for continuing validity. Today, most states permit a "durable" power of attorney that remains valid once signed until you die or revoke the document. You should periodically meet with your lawyer, however, to revisit your power of attorney and consider whether your choice of agent still meets your needs and learn whether developments in state law affect your power of attorney. Some powers of attorney expressly include termination dates to minimize the risk of former friends or spouses continuing to serve as agents. It is vital that you review the continued effectiveness of your documents periodically. A power of attorney allows you (the principal) to appoint someone you trust (i.e. an attorney or attorneys) to make decisions for you during your lifetime. An attorney can make decisions about:
There are 2 types of power of attorney:
General power of attorneyA general power of attorney allows you (the principal) to appoint someone you trust (an attorney) to make decisions about financial matters for you while you have capacity to make decisions about those matters. You may use a general power of attorney to appoint an attorney for a specific period or event (e.g. if you are going overseas and need someone to sell your house or pay your bills). It’s used while you can still make your own decisions and ends once you lose capacity to make those decisions (unless it is a power of attorney given as security). Print and complete: Enduring power of attorneyAn enduring power of attorney allows you (the principal) to appoint someone you trust (an attorney) to make decisions about personal (including health) matters and/or financial matters for you. An attorney for personal matters (including health matters) can only make decisions for you when you do not have capacity to make those decisions. You can decide when your attorney’s power to make decisions for financial matters begins, including:
How to make an enduring power of attorneyWho can make an enduring power of attorneyTo make an enduring power of attorney, you must be 18 or older and have capacity to understand the document you are signing and the powers it gives. This means you need to understand:
You must also be capable of making the enduring power of attorney freely and voluntarily—not due to pressure from someone else. Your enduring power of attorney must be signed by you in the presence of an eligible witness. In signing the enduring power of attorney, the witness is certifying that you appeared to have capacity to make the enduring power of attorney. To find out more about the capacity to make an enduring power of attorney, see section 6 of the capacity assessment guidelines. Preparing to make your enduring power of attorneyBefore you complete an enduring power of attorney form, read the enduring power of attorney explanatory guide. Consider who you want to appoint and talk to them. An enduring power of attorney is a legal document that can significantly affect your legal rights. You should seek independent legal advice before completing the form. Choosing your attorneyYou should choose your attorney(s) carefully. Unfortunately, attorneys may mismanage their role. This could include using your money to pay their own expenses or selling your assets and keeping your money for themselves. Only appoint people you trust to look after your affairs. To be eligible to be an attorney, a person must:
Refer to pages 7–8 of the explanatory guide for more information to help you choose your attorney(s). You can appoint multiple attorneys—but you can only appoint a maximum of 4 people who must agree on all decisions (joint attorneys). If you do appoint multiple attorneys, you will need to decide how they exercise their power (e.g. jointly, severally, by a majority, successively or alternatively). Refer to pages 10–11 of the explanatory guide for more about appointing multiple attorneys. If you don’t have anyone to choose as your attorneyIf you don’t feel confident that you have anyone suitable in your life to take on the responsibilities of an attorney for personal (including health) matters, you can appoint the Public Guardian. Read more about appointing the Public Guardian for personal matters. You can also appoint the Public Trustee as your attorney for financial matters. You should contact the Public Trustee before appointing them to act as your attorney. Learn more about the Public Trustee of Queensland. Another option is appointing a trustee company as your attorney for financial matters. Choose the right formThere are 2 forms you can use to make an enduring power of attorney. Download a free copy of the forms from the links provided here. Use the enduring power of attorney—short form (form 2) to appoint either:
Use the enduring power of attorney—long form (form 3) to appoint different attorneys for personal (including health) matters and for financial matters. Paper copies are available to purchase from various newsagents and stationery suppliers throughout Queensland. You could also print a copy of the forms at your local library or access a print on demand service. Completing the documentRefer to the enduring power of attorney explanatory guide while you complete the form. It steps you through the questions and will give you useful information, practical examples, hints and tips. You will need to sign the form in the presence of one of these witnesses:
Once you and the witness have signed the document, your attorney(s) must sign it to accept the appointment. Your attorney(s) do not have to do this immediately; however, they must sign it before they can begin making decisions on your behalf. What to do with your completed enduring power of attorneyYou do not have to register your enduring power of attorney anywhere. However, if your attorney(s) need to deal with land in Queensland on your behalf, your enduring power of attorney must first be registered with the Queensland Titles Registry by lodging a request to register power of attorney (form 16) together with a single-sided certified copy of the enduring power of attorney. Be aware that once registered with the Titles Registry, an image of the enduring power of attorney will exist on a publicly searchable register. You should:
You should review your enduring power of attorney if your personal circumstances change. Cancelling your enduring power of attorneyYou may revoke (cancel) your enduring power of attorney at any time while you have capacity to do so. Use the revocation of enduring power of attorney (form 6) to revoke your enduring power of attorney. If you revoke your enduring power of attorney, you must take all reasonable steps to advise all of your attorneys that it has been revoked. If it had been registered with the Queensland Titles Registry, you should also register your revocation of the enduring power of attorney by lodging another request to register power of attorney (form 16) , along with a single-sided copy of the revocation of enduring power of attorney (form 6) . To learn about other circumstances when your enduring power of attorney may be revoked or cancelled, see page 19 of the explanatory guide. What an attorney must doAn attorney has important legal duties and obligations they must comply with. It is strongly recommended that a person seeks advice from a professional (e.g. a lawyer) when considering whether to accept appointment as an attorney. These factsheets explain more about the duties and obligations of attorneys in Queensland: More information can also be found on pages 21–24 of the enduring power of attorney explanatory guide. If your attorney behaves improperlyIf your attorney does not comply with their duties and obligations, the Public Guardian can investigate them and the Queensland Civil and Administrative Tribunal (QCAT) can remove them as your attorney. The attorney could also face the following consequences:
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Which of the following statements best defines a power of attorney?
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