If you do not have a Power of Attorney, and you lack capacity to make financial decisions, It may be necessary to petition the court for appointment of a conservator for you. This can be a lengthy and complicated court proceeding. The court costs may be significant. These proceedings may involve court appointed attorneys or investigators that do not know you and who may have little knowledge of your preferences. In all cases, ongoing court involvement will be required.
A Power of Attorney may also be used in a more limited fashion to meet certain needs. For example, a Power of Attorney may be used to handle your affairs if you are traveling for a lengthy period of time. A Power of Attorney is often used in connection with the sale of real estate if one or more of the parties to the transaction is unavailable. Powers of Attorney are highly adaptable to a range of needs.
Power of Attorney FAQ’s Click below for commonly asked questions.
How do I execute a Power of Attorney?
There is no required format for a Power of Attorney but the law sets forth certain minimum requires such as the need to identify an Attorney‐in‐Fact. Powers of Attorney are typically notarized documents. Execution of a Power of Attorney conveys a great deal of authority to another individual. There is always some risk associated with the delegation of power. Accordingly, it is best to have a personalized Power of Attorney prepared for you.
Who can I choose as my Power of Attorney?
You may choose any competent adult to act as your Attorney‐in‐Fact. Most people choose a family member or close friend. Some people choose a social worker or lawyer. Ideally it will be someone you trust who knows you well.
Can I have two Attorneys‐in‐Fact working together?
Yes, but it is not recommended. Two co‐agents acting together would need to make decisions together and would need to agree on all decisions. Third parties such as banks may require dual signatures on all documents. This can be cumbersome and time consuming.
Can I appoint an alternate Attorney‐in‐Fact?
Yes, but it is not a good practice to name both in the same document. Third parties such as banks may be reluctant to recognize the authority of alternate attorneys‐in‐fact out of concern that the authority still rests with the primary attorney‐in‐fact. We recommend a separate power‐of‐attorney for each proposed attorney‐in‐fact with protocols to control access to the documents as necessary to ensure their proper use.
How is a Power of Attorney activated?
Decision making authority will vest in your Attorney‐in‐Fact at the time and upon the conditions that you specify within the Power of Attorney Document. That decision should be customized to your needs.
Can I change my Power of Attorney?
Yes, you may change or revoke your Power of Attorney at any time that you retain legal capacity to understand your actions.
What happens if I do not have a Power of Attorney?
If you lose capacity to make financial decisions and you do not have a Power of Attorney, it is likely that a Petition for Appointment of a Conservator will be brought on your behalf in the appropriate court. The Court may appoint a lawyer to represent you and may appoint an independent investigator to report on the case. If necessary, the Court will appoint a conservator for you who may or may not be your first choice as your decision maker. The court appointed conservator’s authority will be limited. For instance, a conservator cannot sell real estate without court permission. The court will require ongoing court involvement including the annual filing of financial accounts.