To many people, “power of attorney” is the kind of phrase that matters to rich people who can afford lawyers, but not the middle class or the everyman. But you’d be surprised just how important power of attorney can be - for everyone. And this includes what’s known as the “general power of attorney,” which is a powerful distinction in the legal world and carries not only a lot of legal weight, but a lot of impact for your life and the lives of those around you. Let’s start by defining what general power of attorney is.
Quite simply, general power of attorney refers to the basic power of attorney that is granted to someone by one person signing the proper forms. For example, let’s consider this scenario: you are your father’s only son and he signs forms authorizing power of attorney for you so that you can take care of his affairs. What does this entail? If you’ve been granted general power of attorney, you can handle financial matters from signing and endorsing checks to paying the bils. There may be some leeway with other decisions for your father, as well. When this general power of attorney is limited, it ceases to be general power of attorney and only applies to certain cases.
How is general power of attorney granted? Through the general power of attorney forms that we’re talking about on this web site. These can be easy forms to fill out, but their weight and impact should still be recalled, especially if you’re the one granting someone else the general power of attorney. When you grant someone power of attorney, it should always be someone that you trust implicitly, and someone very close to you throughout your life. Granting power of attorney to someone you hardly know is one of the most vital mistakes you could ever make, because they would have legal powers outside of your control.
In order for this form to be valid, however, the form must be signed by both parties - the one granting the power of attorney and the one receiving it. If challenged by a third party, it will be important that the power of attorney form has also been notarized by a notary public, who serves as a witness and verifier that the document that has been signed is authentic and that both signatures are valid. Once this step is taken, there is essentially “no going back,” and the contract is considered ironclad as long as the contract itself is legal and within the power of attorney regulations of the state.
Making sure that you’ve properly handled your power of attorney forms is important if you’re sure about granting power of attorney to someone else - and if you’re the one taking on power of attorney. Both burdens carry heavy responsibilities and will require a lot of thought if such a contract is to be signed and agreed upon by both parties.
A Power of Attorney is a legal document whose sole purpose is to authorize one individual to act on another’s behalf. The creator of a power of attorney is known as the Grantor or Principal (hereafter referred to as the "Grantor") and the person receiving its powers is known as an Agent or Attorney-in-Fact (hereafter referred to as the "Agent"). Some Powers of Attorney also allow a successor to be named in the event the original Agent is unable to act on the Grantor's behalf.
Once a Power of Attorney is in effect, it creates an agency relationship between the Grantor and the Agent until the Power of Attorney is revoked, expires or upon the death of the Grantor. However, different Powers of Attorney vary in the types of powers that are granted.
There are numerous types of Power of Attorney forms including, but not limited to:
A Statutory Power of Attorney is based on language contained within a specific state statute.
Most Powers of Attorney become enforceable upon execution by the Grantor. However, each state has its own requirements regarding execution and enforcement of the document. Many states require that the document be signed in the presence of a notary and two witnesses while others require only one witness.
If a person is incapacitated and a Power of Attorney does not exist, then the Agent may ask a court to impose conservatorship on behalf of the Grantor.
There is no prerequisite to have a Power of Attorney filed in a court in order for it to be enforceable. If the Power of Attorney is drafted and executed in accordance to applicable laws, then it is an enforceable and legally binding document.
If appropriate, the Grantor can inform family members or other interested parties that a Power of Attorney has been signed and that specific powers were given to the Agent. However, if the Grantor is incapacitated or unable to do so, the Agent needs to disclose the existence of the Power of Attorney to interested third parties.
When a Power of Attorney will take effect is determined by language within the Power of Attorney itself. The Power of Attorney can become effective either immediately or through a springing effect.
The Immediate Effect means the Power of Attorney becomes effective on the date of execution of the Power of Attorney.
The Springing Effect means a Power of Attorney becomes effective when a specific event occurs, such as the Grantor's disability, illness or injury.
The Grantor can revoke a Power of Attorney in several ways: (i) by enforcing and fulfilling the revocation provision in the original Power of Attorney document; (ii) by signing a separate document stating that the Grantor now revokes the powers previously granted to the Agent; or (iii) by drafting a new Power of Attorney that will revoke any and all prior written Powers of Attorney.
Typically it is the Agent's responsibility to disclose any revocation of a Power of Attorney to third parties that may be affected. Until such revocation is disclosed, the Power of Attorney is deemed to be in effect.
A Power of Attorney is terminated at the time of expiration, revocation or upon the death of the Grantor (although some Power of Attorney powers may survive the death of the Grantor).
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