The term “power of attorney” sounds like you need a lawyer to be involved. However, typically, a POA is granted and used without the need for lawyers. Giving a power of attorney to someone means that you are conferring on that person the authority to act on your behalf.
A POA is not a uniform, one-size-fits-all grant. In fact, many general POA designations are custom-made to suit the needs of the person granting the authority. Some POAs are all-encompassing, allowing the designee to make almost any financial or other decision that you could make for yourself. If not otherwise indicated, a general power of attorney is not restricted.
However, even a POA with complete control may not transfer the grantor’s assets to themselves. The agent may not make changes to the grantor’s will, cannot transfer their POA authority to another person, and can’t take action after the grantor has died. Furthermore, people with POA are charged with a fiduciary duty, meaning they must act in the principal’s best interests.
The person granting the POA can also add specific restrictions limiting what the POA can do. For example, a POA could state that the agent may sell stock but not buy it or might confer the ability to issue payroll checks but not cash.
General POAs are often granted for convenience.
In many cases, a busy person establishes a general POA to provide means for a colleague or associate to represent their interests. It may be that the POA is carrying out the person's wishes rather than making decisions on their behalf.
Within the POA structures, the grant of authority can be durable, non-durable, or springing. Most are non-durable or springing. A durable POA gives the agent continuing control even after the grantor has become incapacitated. In contrast, a springing POA only takes effect when the grantor becomes incapacitated. And a non-durable general power of authority terminates when the grantor is deemed incapacitated.
What is necessary for a valid POA?
The foundational requirements are that both the grantor and the agent must be mentally capable and at least 18 years of age when the grant is made.
Each state controls the terms of granting a POA. In many states, the rules recommend using a notary public to witness the document signing. However, most of those states allow two adult witnesses to replace a notary.
Very few jurisdictions require document recording, although individual businesses and financial institutions can require advance notice and proof of a POA before accepting the authority. In some states, a POA executing real estate transactions must record the POA document with the county or state records office.
While a general POA grant is a helpful tool in many situations, malfeasance is possible, so it's smart to limit the grant to the specific necessary actions and to review and reconsider the need regularly.
This material is for general information and educational purposes only. Information is based on data gathered from what we believe are reliable sources. It is not guaranteed as to accuracy, does not purport to be complete and is not intended to be used as a primary basis for investment decisions. It should also not be construed as advice meeting the particular investment needs of any investor.
Realized does not provide tax or legal advice. This material is not a substitute for seeking the advice of a qualified professional for your individual situation.
