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I have the POWER (of attorney)!

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Powers of Attorney are at the same time some of the simplest documents in the legal field to execute and carry the most power. When someone signs a Power of Attorney, they are giving someone else the power to step into their shoes and perform legal acts on their behalf. It is not something to be performed lightly or on a whim.

First, lets set out a few definitions to make this a little easier to follow:

  • Power of Attorney: A legal document giving the agent (or attorney in fact) the power to act on behalf of the principal (signer of the Power of Attorney). 
  • Principal: The person who signs over power to the agent or Attorney in Fact.
  • Agent, Attorney in Fact- The person who receives the power under a Power of Attorney to act for another in their legal or financial affairs. This comes with certain obligations like acting in the person's best interest and abusing the power.
  • Durable Power of Attorney: "Durable" means that the Power of Attorney survives the Principal becoming incapacitated, often through mental disability or injury.
  • Springing Power of Attorney: "Springing" means that the Power of Attorney only goes into effect under certain conditions, such as if the Principal becoming disabled or some other triggering event. These often include an affidavit that must be signed and notarized by a physician or other person who must swear out that the triggering event has occurred to activate the Power of Attorney.
  • Medical Power of Attorney: A Power of Attorney to make important medical decisions if the Principal is unconscious or incompetent.
  • General Power of Attorney: A Power of Attorney to handle financial and legal affairs of the Principal.
  • Advanced Directive: Also known as a "Living Will," the advanced directive is often paired with a Medical Power of Attorney to let family members and medical staff know the desire of the Principal if the Principal were to be unable to speak their desires for medical treatment.
  • Revocable: Able to be cancelled or voided at any time.

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What type of Powers of Attorney do I need?

I recommend everyone over the age of 18 have some sort of contingent or springing Power of Attorney as well as an Advanced Directive. Since life is uncertain, it is never known when someone might need to talk to your insurance agency or hospital on your behalf.

One common arrangement, the Durable Springing General Power of Attorney, allows the Principal to only grant the Power of Attorney when they become disabled or when they are out of the country or some other contingency that requires a major change in circumstances to activate. The Attorney in Fact must have an affidavit notarized to show that the event has happened to trigger the Power of Attorney.

Likewise, a Durable Springing Medical Power of Attorney might have the contingency that it becomes active when a doctor swears an affidavit that the Principal is in a serious medical state such that they cannot make their own medical decisions.

Other Powers of Attorney are active and in effect from the moment they are signed. These are not "springing." An elderly parent or disabled adult may give this power to a trusted family member or friend so that they may assist them immediately.

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Is an Advanced Directive a Power of Attorney?

Basically yes. It is simplified type of Medical Power of Attorney and serves as your instructions to your doctor and nurses on what you want to happen if you can't speak for yourself. You can state what you want done if you are in a coma, suffer late stage dementia, or some other condition where your quality of life is diminished to the point that you would consider whether you want to live or pass on. You can also state your preferences for what types of life support and life saving measures are acceptable and whether you want you organs donated. You would also appoint a health care proxy to be the first point of contact for anything that falls outside your stated desires and to ensure the Advanced Directive is followed. Even if one does not want Powers of Attorney, physicians and others recommend an advanced directive to be prepared for the unexpected.

Under Tennessee Law, Advanced Directives have to go through many of the same formalities of a traditional will- they must be signed by two disinterested witness or notarized. A disinterested witness is one who is not a family member and does not stand to benefit from the death of the Principal.

What do I do if I don't like the decisions my Attorney in fact is making?

The benefit of a Power of Attorney is that they are easy to revoke. A signed writing notifying the Attorney in Fact and others who rely on the Power of Attorney is sufficient to revoke it. You can also write a new one naming a different agent and send it to the necessary parties to let them know that there is a new Agent in town.

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I want my parent/sibling/loved one to sign a power or attorney so I can help them but they are mentally unable at this point. What can I do?

Beyond the scope of the Power of Attorney is the Guardianship (for juveniles) or Conservatorship (for adults). This gives ultimate legal power of one person to another and requires court approval. This is typically the nuclear option if the person is already incompetent to make decisions either through being too young or through dementia or serious illness or injury.

Huffman Law Firm stands ready with reasonably rates to assist you with your Power of Attorney needs. Call today to schedule a time to talk about how to make sure that your affairs are taken care of if the worst happens.

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