Power of attorney

Power of attorney

A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter, sometimes against the wishes of the other. The person authorizing the other to act is the principal, grantor, or donor (of the power). The one authorized to act is the agent^[1] or, in some common law jurisdictions, the attorney-in-fact.

Formerly, the term "power" referred to an instrument signed under seal while a "letter" was an instrument under hand, meaning that it was simply signed by the parties, but today a power of attorney need not be signed under seal. Some jurisdictions require that powers of attorney be notarized or witnessed, but others will enforce a power of attorney as long as it is signed by the grantor.

Attorney-in-fact

The term attorney-in-fact is used in many jurisdictions instead of the term agent.^[2] That term should be distinguished from the term attorney-at-law. In the United States, an attorney-at-law is a solicitor who is also licensed to be an advocate in a particular jurisdiction. An attorney-in-fact may be a layperson and is authorized to act pursuant to the powers granted by a power of attorney, but may not engage in acts that would constitute the unauthorized practice of law.

In the context of the unincorporated reciprocal inter-insurance exchange (URIE) the attorney-in-fact is a stakeholder/trustee who takes custody of the subscriber funds placed on deposit with him, and then uses those funds to pay insurance claims. When all the claims are paid, the attorney-in-fact then returns the leftover funds to the subscribers.

The Uniform Power of Attorney Act employs the term agent.^[3] As an agent, an attorney-in-fact is a fiduciary for the principal, so the law requires an attorney-in-fact to be completely honest with and loyal to the principal in their dealings with each other.

Care must be taken when selecting an attorney-in-fact, as some attorneys-at-fact have used their authority to steal the assets of vulnerable individuals such as the elderly (see elder abuse).^[4]

Structure and requirements

Capacity of the grantor

The person who creates a power of attorney, known as the grantor, can only do so when he/she has the requisite mental capacity. Suppose the grantor loses capacity to grant permission after the power of attorney has been created (for example, from Alzheimer's disease or a head injury in a car crash); then the power will probably no longer be effective. In some powers of attorney the grantor states that he/she wishes the document to remain in effect even after he/she becomes incapacitated. This type of power is commonly referred to as a durable power of attorney. If someone is already incapacitated, it is not possible for that person to execute a valid power. If a person does not have the capacity to execute a power of attorney (and does not already have a durable power in place), often the only way for another party to act on their behalf is to have a court impose a conservatorship or a guardianship.

Oral and written

Depending on the jurisdiction, a power of attorney may be oral and, whether witnessed, will hold up in court, the same as if it were in writing.^[5] For some purposes, the law requires a power of attorney to be in writing. Many institutions, such as hospitals, banks and, in the United States, the Internal Revenue Service, require a power of attorney to be in writing before they will honor it, and they will usually keep a duplicate original or a copy for their records. Nursing homes often follow the same practice.

Equal dignity rule

The equal dignity rule is a principle of law that requires an authorization for someone performing certain acts for another person to have been appointed with the same formality as required for the act the representative is going to perform. This means, for example, that if a principal authorizes someone to sell the principal's house or other real property, and the law requires a contract for the sale of real property to be in writing (which is required under the Statute of Frauds in most U.S. jurisdictions), then the authorization for the other person to sign the sales contract and deed must be in writing too. Likewise, in common-law jurisdictions other than the U.S., a power of an attorney to execute a deed (i.e. instrument under seal or executed in presence of two witnesses) must be itself executed as a deed.

Execution

In order for a power of attorney to become a legally enforceable document, at a minimum it must be signed and dated by the principal.^[6] Some jurisdictions also require that a power of attorney be witnesses, notarized, or both.^[7] Even when not required, having the document reviewed and signed (and often stamped) by a notary public may increase the likelihood of withstanding a legal challenge.^[8]

If the attorney-in-fact is being paid to act on behalf of the principal, a contract for payment may be separate from the document granting power of attorney. If that separate contract is in writing, as a separate document it may be kept private between the principal and agent even when the power of attorney is presented to others for the purposes of carrying out the agent's duties.

Types

A power of attorney may be: special (also called limited), general, or temporary. A special power of attorney is one that is limited to a specified act or type of act. A general power of attorney is one that allows the agent to make all personal and business decisions^[9][10] A temporary power of attorney is one with a limited time frame.^[11] If ever required, a durable power of attorney can be revoked or changed as long as the principal is still mentally competent to act.

Durable

Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes "incapacitated," meaning unable to grant such a power, because of physical injury or mental illness, for example, unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated. This type of power of attorney is called "power of attorney with durable provisions" in the United States or "enduring power of attorney" elsewhere. In effect, under a durable power of attorney (DPA), the authority of the attorney-in-fact to act and/or make decisions on behalf of the grantor continues until the grantor's death.^[12]

Health care

In some jurisdictions, a durable power of attorney can also be a "health care power of attorney." This particular affidavit gives the attorney-in-fact the authority to make health-care decisions for the grantor, up to and including terminating care and life support. The grantor can typically modify or restrict the powers of the agent to make end-of-life decisions.^[13] In many jurisdictions a health care power of attorney is also referred to as a "health care proxy" and, as such, the two terms are sometimes used interchangeably.^[7]

Relationship with advance health care directive

Related to the health care power of attorney is a separate document known as an advance health care directive, also called a "living will". A living will is a written statement of a person's health care and medical wishes but does not appoint another person to make health care decisions. Depending upon the jurisdiction, a health care power of attorney may or may not appear with an advance health care directive in a single, physical document. For example, the California legislature has adopted a standard power of attorney for health care and advance health care directive form that meets all of that state's legal wording requirements for a power of attorney and advance health care directive in a single document.^[14] Compare this to New York State, which enacted a Health Care Proxy law that requires a separate document be prepared appointing one as your health care agent.^[15]

Springing

In some U.S. states and other jurisdictions, it is possible to grant a springing power of attorney; i.e., a power that takes effect only after the incapacity of the grantor or some other definite future act or circumstance.^[9] After such incapacitation the power is identical to a durable power, but cannot be invoked before the incapacity. This power may be used to allow a spouse or family member to manage the grantor's affairs in case illness or injury makes the grantor unable to act.^[16] If a springing power is used, the grantor should specify exactly how and when the power springs into effect. As the result of privacy legislation in the U.S., medical doctors will often not reveal information relating to capacity of the principal unless the power of attorney specifically authorizes them to do so.

Determining whether the principal is "disabled" enough to initiate this type of representation is a formal process. Springing powers of attorney are not automatic, and institutions may refuse to work with the attorney-in-fact. Disputes are then resolved in court.

Unless the power of attorney has been made irrevocable by its own terms or by some legal principle, the grantor may revoke the power of attorney by telling the attorney-in-fact it is revoked. However, if the principal does not inform third parties and it is reasonable for the third parties to rely upon the power of attorney being in force, the principal might still be bound by the acts of the agent, though the agent may also be liable for such unauthorized acts.

Standardized forms

Standardized forms are available for various kinds of powers of attorney, and many organizations provide them for their clients, customers, patients, employees, or members. However, the grantor should exercise caution when using a standardized POA form obtained from a source other than a lawyer because there is considerable variation in approved formats among the states.^[7] In some states statutory power of attorney forms are available. Examples include the California Statutory Form Power of Attorney, New York Form Power of Attorney and Wisconsin Form Power of Attorney.

Implied limitations on agent's power

Although a power of attorney grants the agent powers to perform acts in the absence of the grantor, the POA cannot grant powers to the agent that conflict with rules and regulations governing people and companies that the agent deals with. For example, if a bank has regulations that require the grantor to be physically present in the bank to perform certain actions, the POA cannot grant the agent power to perform those actions in the absence of the grantor.

Specialized uses

Proxy voting

Robert's Rules of Order notes that proxy voting involves granting a power of attorney. The term "proxy" refers to both the power of attorney itself and the person to whom it is granted.^[17]

Finance

In financial situations wherein a principal requests a securities broker to perform extensive investment functions on the principal's behalf, independent of the principal's advice, power of attorney must be formally granted to the broker to trade in the principal's account. This rule also applies to principals who instruct their brokers to perform certain specific trades and principals who trust their brokers to perform certain trades in the principal's best interest.

Legal status by country

England and Wales

In English and Welsh law, anyone with capacity can grant a power of attorney. These can be general (i.e., to do anything which can legally be done by an attorney), or relate to a specific act (e.g., to sell freehold property). A power of attorney is only valid while the donor has the capacity to ratify the attorney's actions, unless it is made in the form of a lasting power of attorney and registered with the Office of the Public Guardian. This new form of power of attorney was introduced in 2007 under the Mental Capacity Act 2005 and replaced the former enduring power of attorney, although EPAs correctly made before the law changed are still valid. EPAs only need to be registered if the donor has since lost capacity.

It should be noted that many of the provisions in the earlier paragraphs above use terminology different from either common UK usage or terms used in the Mental Capacity Act 2005. Examples are enduring power of attorney, advance directive, and notary public.

Republic of Ireland

Irish law there are two forms of power of attorney:

• Power of attorney, which may be general or specific, which ceases once the donor becomes incapacitated^[18]
• Enduring power of attorney, which takes effect once the donor is incapacitated^[18]

The death of the donor ends both.^[18]

The relevant legislation is the Powers of Attorney Act 1996 and the Enduring Powers of Attorney Regulations 1996 (SI No. 196/1996) as amended by SI No. 287/1996.^[18] Part 7 of the Assisted Decision-Making (Capacity) Act 2015 provides for new arrangements for those who wish to make an Enduring Power of Attorney and once the 2015 act is commenced, no new powers of attorney will be created under the 1996 act.^[18]

Creating powers of attorney

A solicitor is not necessary when creating Power of Attorney - it can be created when signed by the donor in the presence of a witness.^[18]

Creating an Enduring Power of Attorney requires the following:

• it must be in a particular format^[18]
• a statement from a doctor stating that the doctor thought the donor had the mental capacity to understand the effect of creating the power of attorney when the document was executed^[18]
• a statement from the donor to say that they understood the effect of creating the power^[18]
• a statement from a solicitor to say they are satisfied that the donor understood the effect of creating the power of attorney^[18]
• a statement from a solicitor to say the donor was not acting under undue influence^[18]

The process of creating Enduring Power of Attorney is complex and courts have a general supervisory role in the implementation of the power.^[18]

Russia

Under Russian law, specifically art. 185 of the Russian Civil Code, a power of attorney may be executed under hand or in notarial form.^[19] The power of attorney to act must be notarially executed. Notarial execution is required for any power of attorney made for concluding a contract subject to special public recordation, namely those dealing with interests in immovable property.^[20]

A power of attorney, pursuant to art. 186 of the Russian Civil Code, must also be dated.^[19] Any POA without an express date of execution is void.

Predstavitelstvo, Doverennost (in Russian)

A power of attorney can be irrevocable. The grantor may terminate the POA at any time at his or her sole discretion. Any waiver of this right is void, as provided by the Civil Code.

See also

• Cestui que
• Delegata potestas non potest delegari
• Estate planning

References