What is a power of attorney?

By Bellonora McCallum - Legal Corner

For those who have taken on the huge responsibility of caring for their elderly parents, a spouse, or even the affairs of any family members in the military, consider the benefits of a power of attorney. A power of attorney is able to alleviate some of the challenges of caring for a loved one.

A power of attorney is a written document that allows one person to act as an agent for another person. The person that is appointing the agent to act on their behalf is the principal. The agent is the person given the authority to act on behalf of the principal and is also called the “attorney-in-fact.” However, the agent or attorney-in-fact is not required to be a licensed attorney. Under a power of attorney the agent is allowed to handle business on behalf of the principal. Some of the powers given to an attorney-in-fact include: real property transactions, personal property transactions, banking transactions, business operating transactions, insurance transactions, estate transactions, benefits from military services, tax matters, personal affairs, and health care decisions. This means an agent or attorney-in- fact has the authority to sign papers, checks, title documents, contracts, or manage bank accounts.

There are different types of power of attorneys available to fit different circumstances, including a general power of attorney, a special power of attorney, a durable power of attorney, and a health care power of attorney. A general power of attorney gives the agent complete authority to handle all personal and business decisions. A special power of attorney limits the agent’s authority to handle only specific activities that are outlined in the written document. This means a special power of attorney could be used for the limited purpose of handling a specific business transaction or certain personal matters. A power of attorney can also be limited to a time frame, such as while a military person is deployed.

Generally a power of attorney terminates when the principal dies or no longer has the mental ability to grant the power. However, a durable power of attorney allows the agent to remain the attorney-in-fact with all powers granted even after the principal dies or is no longer mentally capable to make decisions. In order for the durable power of attorney to take effect, the written document must clearly state that the power of attorney will not be affected if the principal becomes mentally incompetent. It may also state that power of attorney becomes effective once the principal becomes mentally incompetent. Either way, the wording must be clear in order for the durable power of attorney to become or remain effective.

While a general and specific power of attorney grants authority over business or personal transactions, a health care power of attorney allows the appointed agent to act on behalf of the principal in matters related to health care. Health care decisions can involve any care, treatment, or service that could maintain, diagnose, or treat the principal’s physical or mental health and could involve life prolonging procedures. Life-prolonging procedures are actions taken by a physician that could serve only to delay the moment of death. These procedures usually involve the assistance of medical machinery and artificial nutrition and hydration such as a feeding tube. A health care power of attorney can be important when the principal wants to limit the persons allowed to make health care decisions on their behalf when they become unable to. Usually, the person appointed as the attorney-in-fact under a health care power of attorney understands and respects the wishes of the principal and has no issues with enforcing those wishes.

As always all matters concerning legal documents should be discussed with a licensed attorney in detail in order to ensure they are completed correctly under the required state regulations.

Bellonora McCallum is an attorney at the McCallum Law Firm, PLLC, in Rockingham and Laurinburg. Reach her at 910-730-4064 or visit www.mccallumlawfirm.com



By Bellonora McCallum

Legal Corner

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