At some point in your life, you’ll want to learn how to get a power of attorney set up. This is an issue many people find themselves facing as their parents or significant other gets older. A power of attorney enables someone to make financial, medical, and some personal decisions for another person legally.
You may set up a power of attorney if you know you may become incapable of handling your affairs either permanently or for a period of time, for example, if you become ill or you are diagnosed with a degenerative disease like dementia. The exact process for getting a power of attorney varies from state to state, but most cases involve sitting down with the person you want to nominate, filling out a power of attorney form, and going through the notarization process. This step-by-step guide will lay out the general steps to take to set up a power of attorney.
Step One – Discuss Your Intentions with Your Loved One
The first step involves discussing setting up a power of attorney with your loved one or significant other. Ideally, you do this before you get sick or have something happen that makes you unable to make a decision for yourself. If you’re afraid that you’ll be unable to make medical or financial decisions in the future, you may request to set up a power of attorney.
Make sure you get permission from the person who you might need to turn over your decision-making rights to before you start the paperwork. In order for someone to grant a motion for a power of attorney, they must be of sound mind and understand what they’re doing. Talk to your loved one and make sure they understand exactly what the power of attorney entails. You must make it very clear that you’ll give up your authority to make decisions for yourself, and you’ll put this power into their hands. This person is your agent.
Step Two – Determine Which Type of Power of Attorney You Need
You can grant a power of attorney for financial or medical matters. If you choose to have a medical power of attorney, the person you grant it to will be able to make medical decisions for you if you can’t make them. A financial power of attorney lets someone make financial decisions on your behalf. You can grant one agent dual powers or you can split the medical and financial decision making between two people. You have to remember:
- Signing power of attorney paperwork doesn’t make it automatically go into effect. Instead, it’ll only activate when you meet certain criteria like you become incapacitated.
- You can choose to get a durable power of attorney, but a durable power of attorney takes effect as soon as you sign it. If you don’t have the word “durable” in the paperwork, it stays inactive until something happens to you.
- There is also a springing durable power of attorney that spans both categories we outlined. It usually doesn’t activate until you become incapacitated. A person has to prove you’re incapacitated before they can activate this type of power of attorney.
- If you want a comprehensive power of attorney, get a general or ordinary one. This gives your agent all of the rights, powers, and responsibilities that they need to make decisions for you and to handle your affairs. It typically ends when you become incapacitated or die.
- Finally, we have a limited power of attorney. This type of power of attorney outlines exactly what a person’s agent can and can’t do. For example, a limited power of attorney may give the agent the ability to make financial decisions related to your property, but they can’t make any other financial decisions on your behalf.
Step Three – Pick Out an Agent
Your agent must be an individual you trust without a question. The decisions of this agent will be legally equal to your decisions, and it’s important that your agent understands you, your health, and any wishes you have. There are a few key factors you want to keep in mind when you’re considering an agent for your power of attorney. They include:
- Consider how close your potential agent is to you. The agent should be someone who knows you very well so they can make decisions that would directly align with your values and wishes if you were unable to make them for yourself. If you want to include end-of-life or medical decisions in the power of attorney, your chosen agent should know your wishes and any religious beliefs. How close the agent lives to you is another consideration because they may need to get to you quickly.
- You have to consider your agent’s health. Ideally, they should be in excellent health because you want a very low chance of them becoming incapacitated themselves. Should they become incapacitated, they will most likely not be able to carry out your wishes or decisions on your behalf when they activate the power of attorney.
- Think about whether you want to give one person both medical and financial decision making power or if you’d like a few people. Power of attorney for anyone is a huge responsibility, and it can quickly get overwhelming for a single person to handle. You might want to consider having at least two agents and assigning one financial power of attorney and one medical power of attorney.
Step Four – Double Check Your State’s Power of Attorney Requirement
Once you’ve decided which power of attorney you need and who will be your agent if you become incapacitated, it’s time to check your state’s power of attorney requirements. They’re all fairly similar, but some states require specialized forms. Usually, your power of attorney document has to list you and your agent and outline exactly what the power of attorney paperwork allows the agent to do on your behalf, such as financial or medical decisions. You should:
- Check whether your state has a specific form for power of attorneys. Many of these forms are on the internet, but any social worker can help you obtain the correct ones.
- If you have a more complicated situation surrounding your power of attorney or you’re not sure which forms to use, get an attorney. An attorney can double check all of your paperwork and help you get all of the necessary requirements in order for granting the power of attorney.
Step Five – Fill Out Your Power of Attorney Form
Once you decide on the type of power of attorney you want or need and your agent, it’s time to get your paperwork in order. In most states, your forms for a power of attorney don’t need to be government-written legal documents. However, it’s still a good idea to use state-issued legal documents to ensure that they’re binding.
- California’s Financial Power of Attorney Form outlines what your power of attorney can and can’t do in relation to your finances. You can print it off and fill it out with your agent, and make sure you both get a copy.
- California’s Advanced Health Care Directive Form outlines the medical aspect of your power of attorney paperwork. If you run out of paper, you can attach other sheets of paper to outline what you do and don’t want with your healthcare.
Step Six – Read Through Your Document for Clarity
Clarity is essential with these documents, and they have to specifically state you, your chosen agent or agents, and the type of powers you want to give them with this paperwork. It can give them a very broad power range or it can give them a very narrow scope. Your documents should specify:
- Make sure your power of attorney document states whether you’re going to grant durable, springing, or springing durable powers. These terms decide when the power of attorney goes into effect and how long it lasts for. Your durable power of attorney lets your agent act as your representative after you become incapacitated. A springing power of attorney lets you make your own decisions until you reach a specified point like a certain age.
- Make sure the paperwork outlines the power of attorney limits and ensure your agent understands them. If the power of attorney paperwork specifies a power transfer that isn’t legal under your local laws, the entire power of attorney will be void. Also, if your agent does something that isn’t included in their outlined powers, that document won’t be valid. For example, the paperwork could outline that the agent can’t write out a will for you, and it won’t be valid if they do.
- You can name alternate agents. These agents won’t get any powers of attorney unless your first agent is unwilling or unable to act in your stead.
Step Seven – Choose Your Witnesses
Many states require that you have one or two witnesses present when you and your agent sign the power of attorney paperwork. You can fill the papers out on your own, but your witnesses have to be with you and sign the paperwork when your agent does. This could be family or friends, or you could get an attorney or any professionals you trust. You’ll also likely need to get it notarized.
Protecting Your Power of Attorney Paperwork
Once you have everything filled out and signed, you have to protect it. There are several things you can do to ensure that your power of attorney paperwork is legal, binding, and on the up and up. Steps you can take include:
Have an Attorney Review the Document
Unless you’re a lawyer yourself, it’s a good idea to have a legal professional look over your power of attorney paperwork. They’re more likely to spot things that you can miss. If you choose not to have an attorney look it over, make sure that you can clearly identify the power you’re going to give to your agent, when those powers start to take effect, and if the powers go back to you (if ever).
- You want to be as specific as possible in your writing. Instead of using broad terms like saying your agent has “power over your finances,” you’d say that “the power of attorney can withdraw money from your bank account(s) to make payments, and the bank accounts are bank account A, bank account B, and bank account C.
Notarize Your Power of Attorney Paperwork
Some states require that you and your agent go before a notary before you sign your power of attorney document to make it legal and binding. Even if your state isn’t one that requires it, it’s a good idea to use a notary because it eliminates any questions as to whether or not the document has legal grounds to stand on. The notary will verify your identity and your agent’s identity before they witness your signature. Most city halls and hospitals have a notary on staff who can witness your signatures.
- Having your power of attorney paperwork notarized reduces the chances that an outside party will contest the document should it ever come into use.
- You can check online to see if your state requires you to have a notary present for power of attorney paperwork. California requires you either have two witnesses or a notary present during the signing process.
Put Your Power of Attorney Documents in a Safe Place
When you finish and sign your power of attorney paperwork, you should put it in a safe place. Both you and your agent should get a copy. You can also request your primary care hospital or clinic to put a copy on file for you. This document doesn’t go to any government agency for recording, and you usually have to have a copy on hand when something happens and your agent needs to activate it. Keeping it in a safe with all of your other important documents is a good idea to ensure you have it when you need it.
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