Power of Attorney
What does a Power of Attorney do?
· A power of attorney gives someone (an attorney-in-fact) permission to take binding actions on your behalf in either the financial area, the health care area, or both.
Do I need a Power of Attorney?
· In most cases, yes, everyone should have a Power of Attorney, so that someone can act on your behalf if you are not able to.
· If you do not have a Power of Attorney and become incapacitated, the court will likely need to appoint a guardian to care for your affairs. Not only will this guardianship likely cost $5,000 to $8,000 in attorneys’ fees, Guardian ad Litem fees and costs to establish, it will likely cost $2,000 a year just in attorneys’ fees to maintain the guardianship.
Can my attorney-in-fact act on my behalf immediately?
· It depends on your Power of Attorney. You can choose to have your Power of Attorney effective immediately or only when your physical and/or mental disability has been established.
Are there different types of Powers of Attorney and if so, how do they differ?
· Yes, there are several different types of Powers of Attorney. The most common types are General Durable Power of Attorney, Health Care Power of Attorney, and Financial Power of Attorney.
· The General Durable Power of Attorney gives your attorney-in-fact permission to make both financial and health care decisions for you.
· The Health Care Power of Attorney only gives your attorney-in-fact permission to make health care decisions for you.
· The Financial Power of Attorney only gives your attorney-in-fact permission to make financial decisions for you.
Can my Attorney-in-fact act after my death?
· No. Your Power of Attorney expires at your death. Only a personal representative appointed by a court pursuant to your Last Will and Testament may act after your death.
Where should I keep my Power of Attorney?
· We advise that you keep the Power of Attorney in a safe deposit box or a fireproof box at home and a copy of the document in an accessible place at home such as a desk or filing cabinet. You should mark on the copy of the document the whereabouts of the original.
Should I record my Power of Attorney?
· The Power has to be recorded with the county auditor’s office of the county in which real estate is located if the appointed attorney does any business with respect to real estate. There is usually no need to record a Power if no real estate business will be done by the Power. We recommend that you do not record your power of attorney until such time as there is a specific reason to do so.
This information was prepared as a public service by Mullavey, Prout, Grenley & Foe LLP. It contains general information and is not intended to apply to any specific situation. The information is very broadly and simply stated. There are a number of exceptions and specific rules that apply to your particular situation and lead to a different result. If you need legal advice or have questions, you should consult a lawyer.