If someone is already incapacitated, it is not possible for that person to execute a valid power, although in some jurisdictions, it may be possible for someone to have the capacity to execute a power of attorney even if they do not have the capacity to make the decisions that they are delegating. This type of power is commonly referred to as a durable power of attorney. In some powers of attorney the grantor states that he/she wishes the document to remain in effect even after he/she becomes incapacitated. If the grantor loses the capacity to grant permission after the power of attorney has been created (for example, from Alzheimer's disease or a head injury in a car crash) then the power will probably no longer be effective. The person who creates a power of attorney, known as the grantor, can only do so when he/she has the requisite mental capacity. Structure and requirements Capacity of the grantor As an agent, an attorney-in-fact is a fiduciary for the principal, so the law requires an attorney-in-fact to be completely honest with and loyal to the principal in their dealings with each other.Ĭare must be taken when selecting an attorney-in-fact, as some attorneys-in-fact have used their authority to steal the assets of vulnerable individuals such as the elderly (see elder abuse). The Uniform Power of Attorney Act employs the term agent. When all the claims are paid, the attorney-in-fact then returns the leftover funds to the subscribers. In the context of the unincorporated reciprocal inter-insurance exchange (URIE) the attorney-in-fact is a stakeholder/trustee who takes custody of the subscriber funds placed on deposit with him, and then uses those funds to pay insurance claims. An attorney-in-fact may be a layperson and is authorized to act pursuant to the powers granted by a power of attorney but may not engage in acts that would constitute the unauthorized practice of law. In the United States, an attorney-at-law is a solicitor who is also licensed to be an advocate in a particular jurisdiction. That term should be distinguished from the term attorney-at-law. The term attorney-in-fact is used in many jurisdictions instead of the term agent. 3.2.1 Relationship with advance health care directive.Revocation – Allows the Principal to cancel a previous power of attorney form. There is a broad number of things that can be assigned to the agent such as selling/purchasing a property, management, leasing, etc. Real Estate – Allows the Agent to act on the behalf of the Principal in regards to real property. Minor Child – Grants parental powers to the Agent over the Principal’s child for a designated period of time. This task can be a one-time transaction or can be designated for a certain period of time. Limited – Allows representation for a specific task. Medical (+)– Grants the Agent the authority to make healthcare decisions regarding the Principal. This is usually granted to one’s accountant or attorney. IRS Form (2848) – Allows representation for federal taxes. General Financial ($) – Not durable, therefore is only valid while the Principal is capable of making their own decisions. The “ durable” term means that it allows the representation to continue even if the person should become incapacitated. Forms By Stateĭurable Financial ($) – Allows representation for financial activity only. After the form is written, it’s required to be signed in accordance with State law (usually a notary or two (2) witnesses. Power of attorney (“POA”) is a designation created by a person (“principal”) and given to someone else (“agent”) to make financial and medical decisions on their behalf.