What Are the Different Types of Power of Attorney?
Having a Power of Attorney can assist in the management of assets and health care when a person is not able to do so. It authorizes another person to make decisions about money or property. In Virginia, a Power of Attorney is a legal document that must be witnessed by a notary public.
Do you know the difference between a Power of Attorney and a Durable Power of Attorney?
- According to the Virginia State Bar Association, a Power of Attorney, or POA, is in effect until the person who is the subject is not capable of handling his/her own financial or legal affairs. If the subject of the POA becomes incapacitated or disabled or dies, the POA generally is no longer in effect.
- On the other hand, a Durable Power of Attorney (DPOA) stays in effect if someone becomes incapacitated and avoids having to go through a court proceeding to appoint a guardian. The Durable Power of Attorney (DPOA) is a relatively easy, inexpensive mechanism for allowing another person to handle someone’s legal and financial affairs on their behalf. The term “durable” means it is in effect even if the person it refers to becomes mentally incapacitated. As a practical matter, most attorneys recommend the use of a Durable Power of Attorney over a Power of Attorney because the Durable Power of Attorney is longer lasting. For a free download of the “Senior Citizens Handbook” (p.56-57), please see the Virginia State Bar Association website: www.vsb.org.
A Durable Power of Attorney for Health Care (DPAHC) is an advance directive that allows you to appoint a health care agent (also known as an attorney-in-fact, a proxy, or a surrogate) to make health care decisions for you in the event that you can no longer speak for yourself. No attorney is required to draft this document, but if you need specific wording that is not as broad as a pre-printed form, you may want to speak with an attorney to draft it to meet your individual needs. Unless you stipulate otherwise, your health care agent makes decisions for you only if you are no longer able to make health care decisions for yourself. By selecting someone to act as the health care decision maker through a DPAHC, you ensure that someone you trust will oversee decisions and implement your wishes regarding any treatment, not just life-sustaining treatment. The authority to make decisions ends when the person decides to revoke the DPAHC or when they die. The health care agent does not have the authority to make legal and financial decisions for a person. A separate Durable Power of Attorney for Property is needed for that.
According to the Virginia State Bar Association, a Power of Attorney differs from Guardianship in that Guardianship involves the court appointment of a person to have care and custody of another person who is incapacitated and unable to provide for his or her own personal needs or to manage his or her financial affairs. A Guardianship may not be needed if a person has an adequate Durable Power of Attorney.
No matter which type of representation a person chooses, the responsibilities include acting only in that person’s best interest, managing their financial affairs carefully, keeping the person’s property and money in their own name separate from your assets, and keeping good records for your benefit in case of an audit.