What is an Emergency Power of Attorney?

Conferring a power of attorney (POA) can be a legal event but doesn’t usually involve a lawyer. Instead, designating a power of attorney gives the named person the authority to make decisions on behalf of the person who made the designation.

Every state controls the details of POA rules and requirements. However, the Uniform Law Commission (ULC), which works to improve standardization among state laws, developed the Uniform Power of Attorney Act in 2006. So far, 31 states have adopted the recommendations in either the current or a prior version. Both the ULC version and the versions used by non-adoptive states seek to preserve the ability of principals to name their preferred agent for decision-making and to reduce the malfeasance potential for those who attempt to take advantage of incapacitated individuals.

What can someone do with a power of attorney designation?

The amount of authority accompanying a POA depends on the type of designation the grantor used. For example, there are limited, special purpose, and durable powers of attorney. A healthcare power of attorney (sometimes called a healthcare proxy) allows the designee to make medical decisions for the grantor. This power is almost always accompanied by a health care directive that outlines the person’s wishes regarding resuscitation, extraordinary measures, and end-of-life.

Healthcare POA designations are almost always durable, which means they do not expire when the person who granted the authority becomes incapacitated. In some states, like California, the POA must be explicitly noted as durable, or it becomes void if the grantor is incapacitated.

General or limited power.

A healthcare POA is an excellent example of limited power. For example, the agent can decide on medical treatment in accordance with the grantor's expressed wishes but can't sell their house or financial holdings. Other examples of limited power of attorney include the authority to pay the grantor's bills but not dispose of any assets.

In contrast, if you confer a general power of attorney, your agent can make almost any decision you might otherwise make. However, your designee may not transfer your assets to themselves. Furthermore, the agent should uphold a fiduciary responsibility (meaning that they act in your best interest), but that’s a vague standard in many states.

When is an emergency POA appropriate?

An emergency POA is a directive that has a specific trigger to go into effect. For example, the emergency POA form could specify that it will become active in certain circumstances:

1. Sudden injury, illness, or disability that impairs the grantor's ability to make decisions.
2. Sudden injury, illness, or disability that impairs the grantor's ability to communicate decisions.

The trigger could be temporary or permanent, depending on the situation. However, the designation must be made in advance. If no POA is on record, a court will need to consider the application for agency and determine a guardian when a person becomes incapacitated. Therefore, it's a good idea to plan ahead to be safe.