A General Power of Attorney
A general power of attorney is a document that gives the power to act on your behalf in all general matters. The power has wide powers to manage your property and financial matters while you are living. This is an important point. A power of attorney is only effective while a person is alive. These powers granted under a general power of attorney typically include:
These powers are listed in general terms. A power of attorney can limit any of these powers. Further, many people or institutions will not deal with an Agent who only has a general power of attorney. Often they will require a specific power of attorney executed for the sole purpose of dealing with that person or institution. Here is list of additional powers that typically require you to specifically grant to your Agent:
The broad powers granted in a general power of attorney are usually intended to be temporary. That is, a general power of attorney is usually used to allow your agent to handle all of your affairs during a period of time when you are unable to do so. For example, you may grant someone a general power of attorney when your physically absent or mentally unable to handle your affairs.
Special Power of Attorney
A limited power of attorney is also known as a special power of attorney. A special power of attorney is a document that grants the agent authority to act in only specified matters or for a particular purpose.
Many people use the special power of attorney to authorize their Agent to do one or several of the following:
Remember, the Special Power of Attorney authorizes your Agent to act on your behalf in a specific situations only. Some other common types of powers of attorney include: health care power of attorney (also called a medical power of attorney or advance health care directive), financial power of attorney for banking matters, power of attorney for care and custody of children, power of attorney for the sale of real property, and power of attorney for the sale of an automobile or other vehicle.
Durable Power of Attorney
A durable power is a feature or characteristic of a general or specific power of attorney. However, a durable power of attorney is typically a general power of attorney. The durable provision or language in a power of attorney allows the document to remain in effect and enforceable if you become incapacitated or unable to deal with your own affairs. This brings up an important point. Without a durable provision or the durable language in the POA, it will become ineffective if you lose mental competence or capacity. Plainly stated, if you must specifically state that you want your power of attorney to be effective despite your incapacity if that is your intention.
Some people choose execute a power of attorney, just in case they become mentally incompetent. They will keep the power of attorney or give it to a custodian to hold. If an unfortunate event arises that leads to the persons mental or physical incapacity or competence, then the custodian will hand the power of attorney over to the agent. An additional precaution is know as the “springing" provision of a power of attorney. This is discussed further below, but you may include language in the document to state that the power of attorney does not come into effect unless you become mentally incompetent or incapacitated. You can require that a doctor sign an affidavit to attest to your incompetency. You can use Avvo's power of attorney form to get started with this.
In short, a durable power of attorney prepares for the period of time or situation in which you are most vulnerable and need someone to handle your affairs honestly and thoroughly. That being said, you should only appoint someone as your agent in the power of attorney document if you fully trust them. You also want to choose someone who you believe is competent to handle your affairs in such an event. Your agent is expected to use his/her best judgment in making decisions for you. However, it is unlikely that your agent could be held liable for his/her conduct unless that person intentionally misused their granted authority. Usually your agent serves voluntarily and is not paid or otherwise compensated. But, you may choose to allocate compensation to your agent if you so desire.
Springing Power of Attorney
A springing power of attorney is a power of attorney with “springing" language or provisions included in the document. A springing power of attorney that takes effect upon the happening of a specified event, date, or condition. That is to say, it is not effective at the time it is made. A springing power of attorney is a “just-in-case" document. Preparing a springing power of attorney is done strictly as preparation for an unfortunate event. A springing power of attorney is generally a general power of attorney, drafted to become effective only in the event and individual loses mental capacity. Discussed above is the concept of a durable power of attorney, which remains in effect or survives incompetency. Such a springing power of attorney springs into effect in the event of mental incompetency.
Once the power of attorney springs into effect, the power is identical to a durable power of attorney. This typical use of the springing power of attorney is to allow a spouse or family member to manage the affairs of the incompetent grantor. Importantly, the springing power of attorney should specify exactly how and when the power springs into effect. If the power of attorney requires medical doctors, the provisions should be very specific.
A physician may not be willing to reveal information relating to mental capacity of an individual, unless the power of attorney specifically authorizes them to do so. A written affirmation from a doctor may be the key component identified for a springing durable power of attorney to take effect. For this reason may individuals, in preparing an estate plan, execute a HIPAA authorization. This authorization allows the medical doctor to disclose vital health information to the person named in the authorization.
A medical doctor should be charged with whether or not the principal is incapacitated and sufficiently mentally incompetent for the power of attorney to "spring" into action. The process and the nature of a springing power of attorney causes many institutions to be reluctant to accept the power of attorney. The failure of institutions and individuals to respect the springing power of attorney often leads to disputes and litigation.
Statutory Power of Attorney
A statutory power of attorney is just a phrased used indicate when a state statute directly authorizes a power of attorney. Often, the power of attorney copies the language in a state statute directly. The statute may even provide a standardized form. When the language varies by state, and a statutory form of power of attorney should comply with the state law where it will be used.
Georgia has a statutory financial power of attorney, O.C.G.A. § 10-6-140, as well as a statutory healthcare power of attorney O.C.G.A. § 31-36-10.
Oral and written powers of attorney
Generally, an oral power of attorney is not effective. An institution or person will generally be very reluctant to deal with an individual on another person’s behalf if they do not have a valid legal document giving them authority. That is why, in Georgia, powers of attorney are required to be witnessed and notarized in order to have legal effect. Even under these conditions, many institutions generate their own powers of attorney and will not accept a power of attorney that does not use their form.
Signatures and notarization
In Georgia, a power of attorney must be signed by the grantor, in front of two witnesses. The witnesses then sign the document. Further, a notary public must certify that the individual has proven to them in an acceptable manner their identity. These requirements prevent individuals from fraudulently executing a power of attorney on someone else’s behalf and then defrauding them in some way. Other states, South Carolina, notarization is not necessary.
Some types of powers of attorney must be filed with the institution in order to be effective. For example, powers of attorney to deal with real estate must generally be recorded at the register of deeds’ office. Also, many financial and medical institutions require that the power of attorney be filed with the institution personally by the individual granting the power of attorney.