How to Appoint a Power of Attorney

Step-by-Step Guide

1. 1

   Step 1: Identify candidates.

   You should think about who can represent your interests effectively.
   
   This person is called your “agent” and he or she will make decisions for you affecting your health or finances.
   
   You should think through the people you know.
   
   A good agent will have the following qualities:be able to handle conflict, especially the conflicting opinions of family members is someone you trust lives near you is a strong advocate and able to stand his or her ground
2. 2

   Step 2: Talk with candidates.

   Once you have identified possible agents, you should talk with them about their willingness to serve in this capacity.
   
   Ask them how comfortable they would feel making life or death decisions for you.
   
   You want to pick someone who is comfortable serving in this capacity. , You should make sure that the person you want to act as your agent can legally serve.
   
   State law limits who may be your agent.
   
   For example, states typically prevent the following people from serving as your agent for purposes of a medical power of attorney:a health care provider anyone who is a spouse, employee, or the spouse of an employee of your health care provider someone who works for a government agency that has financial responsibility for your care a court-appointed guardian or conservator someone who is already an agent for 10 or more people , A durable power of attorney stays in effect even when you become incapacitated.
   
   If the power of attorney is not “durable,” then it ceases to be effective upon your incapacitation.In practice, a medical power of attorney is created precisely for when you become incapacitated and cannot otherwise make medical decisions for yourself.
   
   Accordingly, your medical power of attorney will probably be durable.
   
   Things are somewhat different with the financial power of attorney.
   
   You may or may not want someone to control your finances after you become incapacitated.
   
   You should think this through before sitting down to draft your power of attorney. , If you have questions about a power of attorney, then you should meet with a lawyer to discuss your concerns.
   
   A lawyer can also tell you who can legally serve as your agent.
   
   He or she may also help you draft a form or look over your form after you draft it yourself.
   
   To find an elder law attorney, you can visit the National Elder Law Foundation’s website and search for certified elder law attorneys.You may also visit your state’s bar association and request a referral. , There are many power of attorney forms on the Internet, which you can use to draft your own power of attorney.
   
   For example, the American Bar Association (ABA) has published a multi-state form which you can use.Because the ABA is a professional group of attorneys, it is a good form to use.
   
   You cannot use a universal form (like the ABA form) if you live in Indiana, New Hampshire, Ohio, Texas, or Wisconsin.
   
   These states should provide their own forms for you to use.
   
   Contact your doctor, who may have one.
   
   You also should not use the ABA’s form if you are in a nursing home or care facility in California, Connecticut, Delaware, New York, or Vermont.
   
   If you are in a nursing home in one of these states, you should contact an attorney to help you draft an appropriate power of attorney. , To begin drafting your medical power of attorney, you should open a blank word processing document and set the font to a comfortable size and style.
   
   You can title the document “Power of Attorney for My Health Care.”, In the opening paragraph, you should state your name, birth date, and where you are completing the form.
   
   Also include the date.Sample language could read: “My name is Helen Eileen Smith.
   
   My birthdate is January 22,
   1939.
   
   I am signing my medical power of attorney in the state of New Mexico on June 11,
   2016.” , In the second paragraph, you should identify your agent.
   
   Include the agent’s full name, address, phone number, and email.Sample language could read: “I appoint as my agent Michael John Smith, who lives at 1234 Applebee Road, Jonestown, New Mexico.
   
   His daytime phone number is 555-1234 and his email is [email protected].” It is often a good idea to pick a primary agent but then someone else as backup, in case the primary agent cannot serve., You need to clearly define what the agent can do.
   
   For example, you probably want the agent to be able to agree to or refuse medical care.
   
   You should talk with the agent and go over what kinds of medical care you want when you become incapacitated.
   
   Begin this section by explaining that the agent knows your wishes based on your conversations.
   
   Also state that the agent has authority to make decisions about your health care based on those goals and wishes.
   
   Then you can outline the agent’s authority:“To agree to, refuse, or withdraw consent to any type of medical care, treatment, tests, surgery, or medications.
   
   This power includes decisions about the use of mechanical or other procedures that affect bodily function, such as respirators, artificial feeding (e.g., tube feeding), hydration, cardiopulmonary resuscitation, and other forms of medical support even if deciding to stop or withhold treatment could result in my death.” You can also grant access to medical records: “To have access to medical information and records to the same extent that I would be entitled to, including the right to disclose health information to others.” Review the ABA’s sample power of attorney form for other common powers given to agents. , When you talk with your agent, you should also discuss things you do not want.
   
   You can limit the agent’s authority to do certain things.
   
   For example, you might want to limit the agent’s ability to give medical information to certain people.Alternately, you could state that the agent cannot choose to remove you from any treatment that might result in your death. , Often, the power of attorney becomes effective when you become incapacitated and can no longer make medical decisions for yourself.
   
   Sample language might read, “This Power of Attorney for My Health Care will become effective whenever, in the opinion of my attending physician and my agent, I am unable to make or communicate a choice about a specific health care decision.”, At the bottom of the document, you should insert room for your signature.Just above the signature block include the language, “I understand the contents of this document and the effect of granting powers to my agent.”, You need two signature blocks, one for each witness.
   
   Make sure that there is a line for the witness to print his or her name.
   
   Also include lines for the signature, dates, and address.Add a declaration just above the witness signature blocks.
   
   It should say something to the effect of: “I declare that I know the person who signed this document or have sufficient proof of your identity, and that you signed this Power of Attorney for My Health Care in front of me.
   
   I also declare that you appear to be of sound mind and under no duress, undue influence, or fraud.”, You should search the Internet to find notary blocks acceptable for your state.
   
   You only need the form notarized in a few states:
   Missouri, North Carolina, South Carolina, or West Virginia. , Some states have created financial power of attorney forms for citizens in their states to use.
   
   Wisconsin, for example, has created one.You can search around the web for a form created for your state. , If you don’t want to use your state’s form, then you can draft your own financial power of attorney.
   
   Open a blank word processing document and set your font to a readable size and style.
   
   Times New Roman 12 point is fairly standard.
   
   Title the document.
   
   If you want a durable financial power of attorney, then title it “Durable Financial Power of Attorney” in all caps and bold.
   
   Center the title.
   
   If you do not want a durable power of attorney, then title it “Financial Power of Attorney.” , In the first paragraph, identify yourself and designate the agent.
   
   You can also appoint successor or alternate agents.
   
   If your primary agent dies, then a successor agent will serve.
   
   Be sure to include their full names, addresses, and telephone numbers., A power of attorney can be broad or limited.
   
   You can choose to give the agent control over only one financial area (such as a parcel of real estate) or over all finances and property in your name.
   
   Under the heading “Grant of General Authority” you should write “I grant my agent and any successor agent general authority to act for me with respect to the following subjects.”Then list the financial items you grant the agent authority to act on:
   Real estate.
   
   If you own multiple pieces of real estate, then specify which ones the agent has authority to manage.
   
   Provide the legal description of property, which can be found on the deed.
   
   Tangible personal property.
   
   This would be things like paintings, antiques, jewelry, etc.
   
   Stocks and bonds.
   
   Commodities and options.
   
   Bank accounts: checking, savings, etc.
   
   Operation of a business.
   
   If you own a business, then you can grant your agent the power to run the business.
   
   Estates, trusts, and other beneficial interests.
   
   Retirement plans and benefits from government programs.
   
   Claims and litigation.
   
   If you are involved in a lawsuit, then any money you are awarded is a financial asset. , If you appoint as agent someone other than your spouse or domestic partner, you should specify that the agent can’t use the property to enrich him or herself.
   
   For example, you could write, “The agent MAY NOT use my property to benefit the agent or a person to whom the agent owes an obligation of support unless I have included that authority in special instructions.”, You might have special instructions that you want the agent to follow.
   
   For example, you can specify precisely what property the agent can use for his or her benefit.You can also use special instructions to substitute for a default rule.
   
   In some states, one default rule is that the agent is entitled to reasonable compensation.You should check with your state statute to see how much the agent is entitled to.
   
   However, you can state in the special instructions that the agent is not entitled to any compensation.
   
   You should talk this over with the agent before drafting. , Typically, a power of attorney becomes effective immediately.
   
   However, you can specify the dates when it begins and ends.
   
   If you want the power of attorney to be in effect even if you are incapacitated, then you should state: “This power of attorney shall continue to be effective if I become incapacitated or incompetent.” If you do not want the power of attorney to be durable, then write: “This power of attorney shall not be effective if I become incapacitated or incompetent.”, You need to include a block of lines for you to print and then sign your name.
   
   Also include your address and telephone number.Just above the block, include the following language: “I understand the contents of this document and the effect of granting these powers to my agent.”, Some states will require that two witnesses watch you execute the document.
   
   Insert a signature block for each witness., Depending on your state, you may need to have the form notarized.Find an appropriate notary block for your state and add it beneath the signature block.
   
   You can check whether you need the form notarized by reading your state law.
   
   Search the Internet for “financial power of attorney” and your state. , On a separate sheet, you should type up the acceptance form for the agent to read and then sign.
   
   This document will state what duties the agent must perform.Title the form “Acceptance of Appointment” in bold.
   
   Center the title.
   
   In the first paragraph, type “I, , have read the foregoing Power of Attorney and am the person identified as the Agent.
   
   I hereby acknowledge the following:” List the agent’s responsibilities: “I owe a duty of loyalty and good faith to the principal and must use the powers granted only for the Principal’s benefit.” Include a provision against commingling of funds: “I will keep the Principal’s assets separate and apart from my own funds and assets.
   
   I will not transfer title to any of the Principal’s property or assets into my name alone.” “I must conserve and exercise prudence in my dealings with the Principal’s assets and property.” Add a provision specifying the agent’s accounting responsibilities: “I will keep full and accurate records of any financial transactions and will be ready to provide to the Principal a full accounting of those acts.
   
   I will provide an annual accounting to the Principal of all acts, receipts, and disbursements, and I will provide an accounting upon the Principal’s death to the estate’s personal representative.” Insert a signature block.
   
   Above the block, type “I acknowledge that my authority to act under this power of attorney on behalf of the Principal ends upon the Principal’s death.
   
   I hereby accept the appointment as Agent for the Principal with full knowledge of the responsibilities imposed on me.
   
   I will faithfully carry out my duties to the best of my abilities.” Include a notary block.
   
   It can be the same notary block that you used in the power of attorney document. , You should sign the form only if you agree with everything within it.
   
   You should make sure that your agent understands exactly what is included in the power of attorney as well.
   
   Once you have completed the document, you might want to sit down with your agent and go over the form together.
   
   Make sure to sign in front of your witnesses.
   
   It will not be legal if not witnessed.
   
   Also be careful about who you choose as witnesses.
   
   Your state law will specify who cannot serve as a witness.
   
   Read your state law and only choose as witnesses people who qualify.
   
   Generally, your witnesses cannot be related to you or to each other.
   
   Also, the agent cannot act as your witness., Several states require that power of attorney forms be notarized.
   
   If you are signing a medical power of attorney form in Missouri, North Carolina, South Carolina, or West Virginia, then you need it notarized.You can find a notary at the court house, town office, or at most large banks.
   
   You need to bring sufficient personal identification, such as a valid driver’s license or passport.
   
   You can also use the notary locator at the website of the American Society of Notaries., In a couple of states (such as North Carolina and South Carolina), you must file the power of attorney with your county recorder’s office.Read your state’s law to see if you must file it.
   
   Also, you could call the county recorder’s office and ask. , You should give copies of the signed power of attorney form to your agents and alternate agents.
   
   Also send a copy to your lawyer and close family members.You should send a copy of the medical power of attorney to your doctor.Also send copies of the financial power of attorney to all financial contacts, such as your bank, stockbroker, insurance agent, mortgage company, etc., If you want to change your power of attorney at a later date, then you need to be sure to follow your state’s rules for doing so.
   
   One way you can typically revoke an earlier power of attorney is to fill out a new one and sign it.
   
   Then you should destroy all other copies of any prior form.In Wisconsin, for example, you can revoke a medical power of attorney by burning, tearing, defacing, obliterating, or otherwise destroying the document.If you are unsure of how to revoke a power of attorney, then contact a lawyer and ask.
3. 3

   Step 3: Check if the agent can serve.

4. 4

   Step 4: Decide if you want a “durable” power of attorney.

5. 5

   Step 5: Meet with a lawyer.

6. 6

   Step 6: Find a form.

7. 7

   Step 7: Open a word processing document.

8. 8

   Step 8: Identify yourself.

9. 9

   Step 9: Appoint the agent.

10. 10

    Step 10: Define the powers that you grant to the agent.

11. 11

    Step 11: Set limitations.

12. 12

    Step 12: State when the power of attorney is effective.

13. 13

    Step 13: Include a signature block.

14. 14

    Step 14: Add signature blocks for your witnesses.

15. 15

    Step 15: Include a notary block.

16. 16

    Step 16: Look for forms.

17. 17

    Step 17: Open a word processing document.

18. 18

    Step 18: Designate an agent.

19. 19

    Step 19: Define the scope of the agent’s powers.

20. 20

    Step 20: Specify limitations.

21. 21

    Step 21: Add special instructions.

22. 22

    Step 22: State the date the document becomes effective.

23. 23

    Step 23: Include a signature block.

24. 24

    Step 24: Insert a signature block for witnesses.

25. 25

    Step 25: Add a notary block.

26. 26

    Step 26: Create an Acceptance of Appointment form.

27. 27

    Step 27: Have the form notarized

28. 28

    Step 28: if necessary.

29. 29

    Step 29: File with your county recorder.

30. 30

    Step 30: Distribute copies.

31. 31

    Step 31: Change the form at a later date.

Detailed Guide

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