What is a “Power of Attorney” (and why you probably need one)? Part 1

What is It?

A Power of Attorney isn’t my super-power as a lawyer—it doesn’t refer to a lawyer at all.  A Power of Attorney (POA) is a private legal document that you can set up, which allows someone else to take care of business in your place.

Example 1:  I’m going to be out of town on the day of my real estate sale.  I can sign a Power of Attorney allowing my real estate agent to sign for me at the real estate closing.

Example 2:  My mother worries about possible illness and disability as she ages.  She can sign a Power of Attorney that will allow my sister and me to sign whatever might come up, on her behalf, if she has a serious illness or accident in the future.

Why You Probably Need a Power of Attorney

Example 2 above—about my mother—is the reason most people should seriously consider setting up a Power of Attorney.  It is likely, sometime during your lifetime, that you might have a serious accident or illness and be unable to sign for yourself, make your own decisions, pay your own bills, or take care of your own finances and business.

If you have someone (or more than one “someone”) that you completely trust, you can set up in advance a private POA document that allows that trusted person to sign and act on your behalf if you’re ever unable to do so yourself.  It’s an inexpensive, easy-to-set-up legal document that shouldn’t be overlooked.

You have to set it up while you’re able and competent, then it’s put away to be ready if there is a time in the future that you are not.

As long as you’re an adult, you’re never too young to set up a POA.

If you’re married, your husband or wife isn’t automatically able to do all things for you if you have a serious accident or illness—he or she still needs a POA for you.

If you become incapacitated and do not have a POA, it’s too late.  Your loved ones will have to go to Court, ask a judge to declare you incapacitated, and then the judge will appoint a legal guardian over you, who may or may not be the person (or bank) that you would have wanted.  It’s burdensome, unpleasant and expenses.  A private document (a POA) would have prevented the need for a guardianship in almost all cases.

So, since most people should have a POA, I’d like to delve into the details.

There are many aspects to setting up a Power of Attorney—which in shorthand is called a “POA”.  I’ll address each aspect in this multi-part blog post. 

First, there are different types of POAs to consider:

Types of Powers of Attorney:  Limited vs. General/Durable

The first type is a limited Power of Attorney.  This is a document signed for a limited purpose and/or a limited time-frame.  In the example of the real estate closing, I would use a limited Power of Attorney that only allows my real estate agent to sign real estate closing documents on a particular day.

The other type is a general/durable Power of Attorney.  This is the type of Power of Attorney that my mom would use since she would want my sister and me to be able to handle whatever might come up, whenever it might come up. 

Her document would contain a full list of whatever powers are allowed to be granted by the law of her state of residence.  These are general powers.

A Power of Attorney is durable if it goes into effect and stays in effect even if the creator becomes incapacitated.  It does not need to have the word “durable” in it, but it must say something like “this power of attorney remains in effect even if I am incapacitated.”  This language makes it durable. Please note, though, a POA always ends at the time of a person’s death.

Types of Powers of Attorney:  Springing vs. Immediate

Another distinction is when the power takes effect.  A document might say something like “this document goes into effect upon my incapacity,” making it a springing power (it “springs” into effect upon the creator’s incapacity).  In the alternate, it might say “this document goes into effect immediately upon signing,” making it an immediate Power of Attorney.

While springing is what most people intend, I counsel against using that type.  I much prefer immediate Powers of Attorney. 

The trouble with springing powers is proof.  Say my mom has a stroke and cannot pay her bills or do her banking.  If she has a springing POA, I take it down to the bank, tell them she’s had a stroke and I need to pay her bills.  Chances are they won’t talk to me. 

They I contact her doctor’s office, tell them that I need proof of mom’s medical condition for the bank, and they tell me because of medical privacy they cannot disclose any medical information on my mom unless I’m her Power of Attorney. At which I respond—I’ll be her Power of Attorney just as soon as you give me her medical information—and then they hang up on me.  See the circular problem?

A better choice would be an immediate Power of Attorney with which I could immediately began handling my mom’s banking and bill paying.  There is a risk for my mom if I’m an unscrupulous scoundrel, but we’ll address that later when we talk about “who to pick for your power of attorney.”


We’ve just scratched the surface in our discussion of Powers of Attorney.  There’s a lot more than I want to address. We’ll continue discussing Powers of Attorney in Parts 2, Part 3 and Part 4 of this blog post, where I’ll talk about: 

–Powers that Can and Should be Given in a Power of Attorney

–What a Power of Attorney Can’t Do

–Who to Select as a Power of Attorney

–How to Create a Power of Attorney

–What to Do With Your Power of Attorney Document

–How to Cancel or Amend Your Power of Attorney


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This blog is provided for general information and is not legal advice.  You should not take any actions based on the content of this blog without seeking the advice of an attorney.  To get advice on your particular situation, seek specific legal counsel from your own attorney.  Also, some of the content of this blog is Indiana-specific and may not apply to your particular state of residence. 

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