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When you appoint an attorney there are choices that must be made about what decisions the attorney will be able to make and when they can act for you. It is important to consider the options and have a power of attorney document that suits your needs.
You can always also continue to act for yourself as long as you have capacity.
There may be times when you want someone else to deal with your finances. For example…
A non-enduring power of attorney (POA) can be used for these sorts of purposes. This type of POA ends if you can no longer understand what it means to give someone a POA or you are no longer capable of making your own decisions.
By creating an enduring POA, you can choose who you want to make decisions for you when you cannot make them yourself. Without an enduring POA, your next-of-kin or other interested party would need to apply to court for adult guardianship to be able to act for you.
An enduring POA must clearly state that you want your attorney to be able to act when you are no longer capable of making your own decisions. If it does not, then it will be a non-enduring POA.
If you do not state otherwise, your POA will come into effect as soon as you complete it. If you want your POA to come into effect only at a later date, you can create a contingent enduring POA. With this type of POA, you can choose when it will come into effect. For example, you could have it come into effect only when you can no longer make your own decisions.
You can give someone the authority to decide whether you are still able to make your own decisions. You cannot give this authority to the person you appointed as an attorney or to a member of their family.
If you did not give anyone the authority to decide if you can still make your own decisions, then two professionals must decide. The professional groups that are allowed to make this decision include:
You can appoint a property attorney under a POA to manage your property and financial affairs. This could include the ability to withdraw money from bank accounts, pay bills and sell or purchase property. A property attorney cannot make a Will for you or change your existing Will.
A property attorney under an enduring POA can use your funds to support your spouse and any dependent children. The attorney can also use your funds to pay for their education. If you do not want them to be able to do this, you can state it in the POA document.
You can give a property attorney appointed under an enduring POA the authority to make gifts. If you do not give this authority, they can still make gifts but there are restrictions. In this case, the total value of all gifts in any year cannot exceed $1,000. The attorney in this case can also only make the gift if you can afford it and it is something you would normally do.
You can also appoint a personal attorney under a POA. They can make decisions about your personal affairs. This could include deciding where you should live and what kind of help you need around the home.
A personal attorney cannot make health care decisions for you. These types of decisions may be dealt with by making a health care directive. See Health Care Directives for more information.
Unless you state otherwise, an attorney under an enduring POA is both a personal and a property attorney. You can specify in a POA that you only want one or the other. You can also choose to appoint a different person for each role.
If your property and personal attorney is not the same person, there are rules about what happens when they disagree about a decision. The property attorney will have the final say if the POA does not state who should make the decision and the decision involves spending money. If the personal attorney disagrees with the decision of the property attorney, either party can ask the court for direction.
You can choose to give an attorney either general authority or specific authority. If you give a property attorney general authority, they can make all decisions about your finances. If you give a personal attorney general authority, they can make all decisions about your personal affairs.
If you only want your attorney to make certain decisions, you can say this in the POA document. For example…
There are a number of things you can authorize your attorney to do for. Although you have choices, the law does not allow someone who is appointed as your attorney to do certain things.
You can appoint an attorney to only act for you during a specific time or in specific situations. You can also choose to not put an end date on the appointment or to have the appointment only come into effect in certain circumstances. Although a power of attorney is a flexible tool, there are rules about when an appointment ends under the law.
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