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Power of Attorney
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A document which gives a person the right to make binding decisions for another, as an agent.
A document which gives a person the right to make binding decisions for another, as an agent.
A sample of a power of attorney is given in the recent case of Egli v Egli. In that case, the judge defines a power of attorney as:
"By a power of attorney, one individual appoints another to act for him or her."
In Re McCarty, Justice Middleton adopted these words:
"A power of attorney in its strict acceptation, being an authority to the attorney to do certain specific acts in the name of, and as personally representing the party granting the power, it seems necessarily to follow from a consideration of the nature of such a power that it must determine with the death of the donor."
The person signing the power of attorney (POA) is usually referred to, in law, as the donor and the person that would exercise the power of attorney, the attorney or the donee.
However, some jurisdictions prefer the word principal, in deference to the law of agency of which POAs are a species.
A power of attorney may be specific to a certain kind of item of property or condition (a limited power of attorney) or general, in which the agent makes all major decisions for the person who is the subject of the power of attorney.
At common law, a power of attorney is automatically rendered null and void if the donor becomes mentally incapable of managing his or her affairs. To accommodate this, some jurisdictions allow enduring powers of attorney ( sometimes also called continuing powers of attorney).
The laws in a jurisdiction may also allow a springing POA.
The attorney has a fiduciary duty towards the donor in the exercise of the power of attorney.
The power of attorney is the classic instrument of agency law.
A power of attorney dies with the grantor of that power, the donor.
In particular, statutes and legislation of individual jurisdiction or state differ as to the forms, requirements and scope available to individuals who wish to institute these fabulous estate planning tools; thus, even more important that you consult with a lawyer before attempting to do-it-yourself with any prospective power of attorney.
An improperly drafted power of attorney may well defeat it as third parties will always demand to see a power of attorney before acting upon it. If a power of attorney is suspect, in form or content, the third party will likely decline to act on it, causing been a great disservice to the donor at a time when she or he would have anticipated that the power of attorney would have been most useful.
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