A general Power of Attorney (POA) is a document that a person drafts and signs, which will give another person the ability to make decisions on their behalf. The person that offers the power to another person is called a principal. The person that receives this power is called an agent or attorney-in-fact.

The principal must have capacity at the time of the signing. Capacity is the ability to make and communicate an informed choice. Minors do not have capacity due to their age. Capacity could be lost during an illness or severe mental health diagnosis.

DURABLE POWER OF ATTORNEY

A Power of Attorney ends if the principal becomes incapacitated or unfit for normal functioning unless the power of attorney is “durable.” A durable Power of Attorney is similar to a general POA, except a measure was taken that will allow the document to remain valid even after the principal becomes unfit for normal functioning. While a principal can revoke a general Power of Attorney at any time, only a court can revoke a durable POA since the principal will lack the ability to make the decision. A durable POA is often used to avoid the need for guardianship, which can sometimes be an expensive process.

 LIMITED VS. BROAD POWER OF ATTORNEY

A Power of Attorney can be limited or broad. It can cover anything that the principal wishes. The principal can pass on any power they want the agent to have. Since no one can accurately predict all situations that may arise, it is usually best to grant the agent broad powers to manage your affairs.

MEDICAL POWER OF ATTORNEY

A medical Power of Attorney is a type of durable POA. It must be created when the principal has the capacity but usually does not take effect until the principal is unfit for normal functioning. The agent will then have the ability to make medical decisions on the principal’s behalf.

POWER OF ATTORNEY FOR MINORS

The final type of power of attorney is a power of attorney for minors. This type of POA allows parents to assign decision-making powers over their children to another person. This POA is typically helpful when the parent is absent or otherwise unable to make decisions for their children. It can be revoked at any time by the parent or may have an end date listed on the POA. The important thing about this type of POA is that the parent’s parental rights are not affected.

The advantage of a POA is that it allows the principal to have control over who is given the power, and the principal can end it at any time. Also, you do not have to go to court to get a POA, nor to terminate it. Unlike guardianship, there is also no court supervision of a POA. Finally, and perhaps most importantly, a POA is pretty inexpensive.

No matter the type of POA the principal chooses, all POAs expire at the death of the principal or agent.

You may benefit from preparing your power of attorney documents if:

• you are preparing for surgery or another medical treatment that may cause you to be incapacitated for more than a few hours.

• you want to be ready for the unexpected, whether a medical emergency or a change of life plans.

• you are simply ready to pass on some responsibility to others in your life.

• you are traveling abroad, which may mean you will be out of direct contact with financial institutions.

If you or someone you know needs help with a Power of Attorney, call an attorney of your choice or try our Helpline at 501-376-3423 (mon.-Fri, 9-11 am and 1-4 pm). We also help with Wills, Living Wills and Guardianships.

AUTHOR: JEFF THOMAS, STAFF ATTORNEY FOR THE CENTER FOR ARKANSAS LEGAL SERVICES