Estate Planning

How to Draft a Power of Attorney: A Step-by-Step Guide

Ty McDuffey

April 26, 2024

|

how to draft a power of attorney

The intelligent digital vault for families

Trustworthy protects and optimizes important family information so you can save time, money, and enjoy peace of mind

Whether you need a power of attorney (POA) for financial matters, healthcare decisions, or other personal affairs, it's important to draft it correctly. This ensures your wishes are carried out and your interests are protected.

We’ll explain how to write a power of attorney and show you the important steps to take during the process.


Key Takeaways:

  • First, determine the type of power of attorney based on your specific circumstances and requirements.

  • Choose a trusted and reliable person to serve as your agent or attorney-in-fact.

  • Be specific about the powers you want to grant and any limitations or restrictions you want to impose.

Step 1: Determine the Type of Power of Attorney You Need

determine the type of power of attorney

The first step in writing a power of attorney is determining the type of POA that best suits your needs. 

General Power of Attorney

A general power of attorney (POA) is a legal document granting powers to your chosen agent or attorney-in-fact to act on your behalf in financial and legal matters. This type of POA is often used temporarily, such as when traveling, physically or mentally unable to handle your affairs, or simply needing assistance with day-to-day tasks.

When you create a general POA, you give your agent the authority to make decisions and take actions in your name, such as:

  • Managing your bank accounts and financial transactions

  • Paying your bills and handling your taxes

  • Buying, selling, or managing your real estate properties

  • Handling your insurance matters and legal affairs

  • Accessing your safe deposit boxes and other secure storage

  • Making gifts or donations on your behalf (if specifically authorized)

A general POA is typically valid for a specific period or until you revoke it.

Durable Power of Attorney

A durable power of attorney remains in effect even if you become incapacitated or unable to make decisions for yourself. It continues to be valid and allows your agent to manage your affairs on your behalf.

There are two main types of durable POAs:

  • Immediate Durable Power of Attorney: It takes effect once you sign it and remains valid even if you become incapacitated later. Your agent can begin acting on your behalf immediately, without additional documentation or court intervention.

  • Springing Durable Power of Attorney: It "springs" into effect only when a specific event occurs, such as when you become incapacitated. Until that event occurs, your agent does not have the authority to act on your behalf.

Durable POAs are commonly used for long-term financial management and healthcare decision-making. 

Healthcare Power of Attorney

A healthcare power of attorney (also known as a medical power of attorney) is a legal document granting your chosen agent the authority to make medical decisions on your behalf if you cannot do so yourself. This type of POA is often used with a living will, which outlines your specific wishes for end-of-life care.

When you create a healthcare POA, you give your agent the power to:

  • Make decisions about your medical treatment, including consenting to or refusing procedures, medications, and surgeries

  • Access your medical records and communicate with your healthcare providers

  • Decide on your living arrangements, such as admitting you to a hospital, nursing home, or hospice care

  • Enforce your wishes regarding life-sustaining treatments, as outlined in your living will

A healthcare POA ensures that your medical wishes are respected if you become incapacitated due to illness, injury, or age-related cognitive decline. 

Limited or Special Power of Attorney

A limited or special power of attorney grants specific powers to your agent for a particular purpose or transaction. Unlike a general POA, which gives your agent broad authority, a limited or special POA restricts their powers to a specific task or set of tasks.

Some common examples of limited or special POAs include:

  • Real Estate Power of Attorney

  • Vehicle Power of Attorney

  • Investment Power of Attorney

  • Business Power of Attorney

By tailoring the POA to your specific needs, you can maintain control over your affairs while still getting the required assistance.


Step 2: Choose Your Agent

choose your agent

Choosing the right person to serve as your agent or attorney-in-fact is paramount. This person will have significant authority over your affairs, so selecting the right person is essential.

When choosing an agent, consider the following factors:

  • Trustworthiness: Choose someone you trust completely to follow your wishes and act in your best interests, even in difficult or stressful situations.

    Clinton M. Sandvick, JD, Ph.D., advises:

    "The agent should also have the necessary background and understand the situation they will be put in when the power of attorney goes into effect. Consider the age, health, and location of potential agents."

  • Reliability: Select an agent who is responsible, organized, and capable of handling the role's duties and responsibilities.

  • Proximity: Consider choosing an agent who lives nearby or is easily accessible, especially if they need to make decisions or take action on short notice.

  • Willingness: Ensure your chosen agent is willing and able to serve in this role and understands the responsibilities involved.

It's also a good idea to name a successor agent in case your primary agent is unable or unwilling to serve when needed.


Step 3: Specify the Powers You Want to Grant

specify the powers you want to grant

Be specific about the powers you want to grant to your agent. Clearly define the scope of their authority and any limitations or restrictions you want to impose.

Some common powers granted in a POA include:

Financial Powers

When granting financial powers to your agent through a power of attorney, you enable them to manage your financial affairs on your behalf. This can include a wide range of tasks, such as:

  • Accessing and managing your bank accounts, including checking, savings, and investment accounts

  • Writing checks and making deposits or withdrawals on your behalf

  • Paying your bills, such as utilities, credit cards, and mortgage or rent payments

By granting financial powers to your agent, you entrust them with responsibility for your financial well-being. Choose someone you trust to make sound decisions and act in your best interests.

Real Estate Powers

Real estate powers allow your agent to make decisions related to your real estate properties. This can include:

  • Buying or selling real estate on your behalf, including negotiating prices, signing contracts, and handling closing procedures

  • Refinancing or obtaining mortgages for your properties

  • Managing your rental properties, including finding tenants, collecting rent, and handling maintenance and repairs

By granting real estate powers to your agent, you're allowing them to make important decisions about your properties. Choose someone with the necessary knowledge and experience to handle these matters effectively.

Legal Powers

Legal powers authorize your agent to make legal decisions and act on your behalf. This can include:

  • Entering into contracts or agreements in your name, such as leases, service contracts, or business agreements

  • Hiring and communicating with attorneys to represent your interests in legal matters

  • Making decisions related to legal proceedings, such as settling claims or lawsuits, or filing appeals

Legal powers can significantly affect your rights and obligations, so choose an agent capable of making sound legal decisions in your best interests.

Healthcare Powers

Healthcare powers give your agent the authority to make medical decisions and take actions related to your healthcare when you cannot do so yourself. This can include:

  • Making decisions about your medical treatment, such as consenting to or refusing surgeries, medications, or other procedures

  • Accessing your medical records and communicating with your healthcare providers about your condition and treatment options

  • Enforcing your wishes regarding life-sustaining treatments, as outlined in your living will or advance directive

It's important to choose an agent who understands your values and preferences and is willing to advocate for your best interests in medical situations.

Creating a power of attorney is a key step in protecting your interests and ensuring your affairs are managed according to your wishes. By using Trustworthy to store and share your POA securely, you can have confidence that your legal and financial matters will be handled properly, even if you become unable to manage them yourself.


Step 4: Ensure Compliance with State Laws

ensure compliance with state laws

Each state has legal requirements for creating a valid power of attorney. Ensure your POA complies with your state's laws and is properly executed and notarized.

Some common requirements for a valid power of attorney include:

Written Document

Most states require a power of attorney in writing and signed by the principal (the person granting the powers) for it to be legally valid. This helps to ensure the principal's wishes are clearly documented and can be easily verified if needed.

When creating a written power of attorney, include the following information:

  • The name and contact information of the principal

  • The name and contact information of the agent or attorney-in-fact

  • The specific powers being granted to the agent

  • The duration of the power of attorney (e.g., whether it is durable or expires on a specific date)

  • The principal's signature and the date of signing


    Once you create your power of attorney, you need to store the document securely and ensure your agent and other trusted parties can access it when needed. Trustworthy provides a secure online platform for storing and sharing your power of attorney and other important legal documents.

Notarization

Notarization aims to prevent fraud and ensure the principal is signing the power of attorney voluntarily and with a clear understanding of its contents. Notaries are trained to look for signs of coercion, duress, or lack of capacity.

To have a power of attorney notarized, the principal must typically appear in person before a notary public and provide valid government-issued photo identification. The notary will then verify the principal's identity, witness the signing of the document, and affix their official seal and signature to the power of attorney.

Notarization requirements vary by state, so it's wise to research your state's specific requirements or work with an attorney to ensure your power of attorney is properly notarized.

Witnesses

Some states require a power of attorney to be signed in the presence of one or more witnesses, who must also sign the document. Witness requirements can vary by state, but generally, a witness must be:

  • At least 18 years old

  • Not named as an agent or attorney-in-fact in the power of attorney

  • Not related to the principal by blood, marriage, or adoption

  • Not a caregiver or healthcare provider for the principal

When signing as a witness, the individual is attesting that they saw the principal sign the power of attorney and that the principal appeared to be of sound mind and under no duress or undue influence.

Specific Language

Certain states require specific language or provisions to be included in a power of attorney for it to be legally enforceable. This language may relate to the powers being granted, the duration of the document, or the principal's right to revoke the power of attorney.

For example, some states may require a power of attorney to include specific language indicating it’s a "durable" power of attorney that remains in effect even if the principal becomes incapacitated. Other states require language specifying that the agent has the authority to make gifts on behalf of the principal.

If you're unsure about the specific language requirements in your state, it's always best to consult with an attorney. 


Step 5: Review and Update Your Power of Attorney Regularly

review and update your power of attorney regularly

Once you've created your power of attorney, reviewing and updating the document regularly is essential to ensure it reflects your current wishes and circumstances. Some events that may trigger a review of your POA include:

  1. Changes in your health or cognitive abilities

  2. Changes in your financial or personal circumstances

  3. Changes in your relationship with your chosen agent

  4. Changes in your state's laws or regulations governing powers of attorney

By keeping your power of attorney up to date, you can ensure that your affairs will be managed according to your current preferences and that your agent will have the necessary authority to act on your behalf.

It's important to note that a power of attorney is only valid during your lifetime. If you pass away, your agent's authority ends, and your estate will be managed according to the terms of your will or trust.


FAQs

Can I have multiple agents in my power of attorney?

Yes, you can name multiple agents in your power of attorney. This can be useful if you want to divide responsibilities among different people or ensure there’s a backup agent. However, be sure to specify whether the agents can act independently or must make decisions jointly.

Can I revoke or change my power of attorney?

Yes, you can revoke or change your power of attorney at any time as long as you are mentally competent. To revoke a power of attorney, you should notify your agent in writing and destroy all copies of the document. To change your power of attorney, you will need to create a new document that reflects your current wishes and revokes the previous POA.

What happens if my agent abuses their powers or acts against my wishes?

If your agent misuses their authority or fails to act in your best interests, you can revoke the power of attorney and take legal action against them if necessary. This is why it's important to choose a trustworthy and reliable agent who will follow your instructions and act in good faith.

Estate Planning

How to Draft a Power of Attorney: A Step-by-Step Guide

Ty McDuffey

April 26, 2024

|

how to draft a power of attorney

Whether you need a power of attorney (POA) for financial matters, healthcare decisions, or other personal affairs, it's important to draft it correctly. This ensures your wishes are carried out and your interests are protected.

We’ll explain how to write a power of attorney and show you the important steps to take during the process.


Key Takeaways:

  • First, determine the type of power of attorney based on your specific circumstances and requirements.

  • Choose a trusted and reliable person to serve as your agent or attorney-in-fact.

  • Be specific about the powers you want to grant and any limitations or restrictions you want to impose.

Step 1: Determine the Type of Power of Attorney You Need

determine the type of power of attorney

The first step in writing a power of attorney is determining the type of POA that best suits your needs. 

General Power of Attorney

A general power of attorney (POA) is a legal document granting powers to your chosen agent or attorney-in-fact to act on your behalf in financial and legal matters. This type of POA is often used temporarily, such as when traveling, physically or mentally unable to handle your affairs, or simply needing assistance with day-to-day tasks.

When you create a general POA, you give your agent the authority to make decisions and take actions in your name, such as:

  • Managing your bank accounts and financial transactions

  • Paying your bills and handling your taxes

  • Buying, selling, or managing your real estate properties

  • Handling your insurance matters and legal affairs

  • Accessing your safe deposit boxes and other secure storage

  • Making gifts or donations on your behalf (if specifically authorized)

A general POA is typically valid for a specific period or until you revoke it.

Durable Power of Attorney

A durable power of attorney remains in effect even if you become incapacitated or unable to make decisions for yourself. It continues to be valid and allows your agent to manage your affairs on your behalf.

There are two main types of durable POAs:

  • Immediate Durable Power of Attorney: It takes effect once you sign it and remains valid even if you become incapacitated later. Your agent can begin acting on your behalf immediately, without additional documentation or court intervention.

  • Springing Durable Power of Attorney: It "springs" into effect only when a specific event occurs, such as when you become incapacitated. Until that event occurs, your agent does not have the authority to act on your behalf.

Durable POAs are commonly used for long-term financial management and healthcare decision-making. 

Healthcare Power of Attorney

A healthcare power of attorney (also known as a medical power of attorney) is a legal document granting your chosen agent the authority to make medical decisions on your behalf if you cannot do so yourself. This type of POA is often used with a living will, which outlines your specific wishes for end-of-life care.

When you create a healthcare POA, you give your agent the power to:

  • Make decisions about your medical treatment, including consenting to or refusing procedures, medications, and surgeries

  • Access your medical records and communicate with your healthcare providers

  • Decide on your living arrangements, such as admitting you to a hospital, nursing home, or hospice care

  • Enforce your wishes regarding life-sustaining treatments, as outlined in your living will

A healthcare POA ensures that your medical wishes are respected if you become incapacitated due to illness, injury, or age-related cognitive decline. 

Limited or Special Power of Attorney

A limited or special power of attorney grants specific powers to your agent for a particular purpose or transaction. Unlike a general POA, which gives your agent broad authority, a limited or special POA restricts their powers to a specific task or set of tasks.

Some common examples of limited or special POAs include:

  • Real Estate Power of Attorney

  • Vehicle Power of Attorney

  • Investment Power of Attorney

  • Business Power of Attorney

By tailoring the POA to your specific needs, you can maintain control over your affairs while still getting the required assistance.


Step 2: Choose Your Agent

choose your agent

Choosing the right person to serve as your agent or attorney-in-fact is paramount. This person will have significant authority over your affairs, so selecting the right person is essential.

When choosing an agent, consider the following factors:

  • Trustworthiness: Choose someone you trust completely to follow your wishes and act in your best interests, even in difficult or stressful situations.

    Clinton M. Sandvick, JD, Ph.D., advises:

    "The agent should also have the necessary background and understand the situation they will be put in when the power of attorney goes into effect. Consider the age, health, and location of potential agents."

  • Reliability: Select an agent who is responsible, organized, and capable of handling the role's duties and responsibilities.

  • Proximity: Consider choosing an agent who lives nearby or is easily accessible, especially if they need to make decisions or take action on short notice.

  • Willingness: Ensure your chosen agent is willing and able to serve in this role and understands the responsibilities involved.

It's also a good idea to name a successor agent in case your primary agent is unable or unwilling to serve when needed.


Step 3: Specify the Powers You Want to Grant

specify the powers you want to grant

Be specific about the powers you want to grant to your agent. Clearly define the scope of their authority and any limitations or restrictions you want to impose.

Some common powers granted in a POA include:

Financial Powers

When granting financial powers to your agent through a power of attorney, you enable them to manage your financial affairs on your behalf. This can include a wide range of tasks, such as:

  • Accessing and managing your bank accounts, including checking, savings, and investment accounts

  • Writing checks and making deposits or withdrawals on your behalf

  • Paying your bills, such as utilities, credit cards, and mortgage or rent payments

By granting financial powers to your agent, you entrust them with responsibility for your financial well-being. Choose someone you trust to make sound decisions and act in your best interests.

Real Estate Powers

Real estate powers allow your agent to make decisions related to your real estate properties. This can include:

  • Buying or selling real estate on your behalf, including negotiating prices, signing contracts, and handling closing procedures

  • Refinancing or obtaining mortgages for your properties

  • Managing your rental properties, including finding tenants, collecting rent, and handling maintenance and repairs

By granting real estate powers to your agent, you're allowing them to make important decisions about your properties. Choose someone with the necessary knowledge and experience to handle these matters effectively.

Legal Powers

Legal powers authorize your agent to make legal decisions and act on your behalf. This can include:

  • Entering into contracts or agreements in your name, such as leases, service contracts, or business agreements

  • Hiring and communicating with attorneys to represent your interests in legal matters

  • Making decisions related to legal proceedings, such as settling claims or lawsuits, or filing appeals

Legal powers can significantly affect your rights and obligations, so choose an agent capable of making sound legal decisions in your best interests.

Healthcare Powers

Healthcare powers give your agent the authority to make medical decisions and take actions related to your healthcare when you cannot do so yourself. This can include:

  • Making decisions about your medical treatment, such as consenting to or refusing surgeries, medications, or other procedures

  • Accessing your medical records and communicating with your healthcare providers about your condition and treatment options

  • Enforcing your wishes regarding life-sustaining treatments, as outlined in your living will or advance directive

It's important to choose an agent who understands your values and preferences and is willing to advocate for your best interests in medical situations.

Creating a power of attorney is a key step in protecting your interests and ensuring your affairs are managed according to your wishes. By using Trustworthy to store and share your POA securely, you can have confidence that your legal and financial matters will be handled properly, even if you become unable to manage them yourself.


Step 4: Ensure Compliance with State Laws

ensure compliance with state laws

Each state has legal requirements for creating a valid power of attorney. Ensure your POA complies with your state's laws and is properly executed and notarized.

Some common requirements for a valid power of attorney include:

Written Document

Most states require a power of attorney in writing and signed by the principal (the person granting the powers) for it to be legally valid. This helps to ensure the principal's wishes are clearly documented and can be easily verified if needed.

When creating a written power of attorney, include the following information:

  • The name and contact information of the principal

  • The name and contact information of the agent or attorney-in-fact

  • The specific powers being granted to the agent

  • The duration of the power of attorney (e.g., whether it is durable or expires on a specific date)

  • The principal's signature and the date of signing


    Once you create your power of attorney, you need to store the document securely and ensure your agent and other trusted parties can access it when needed. Trustworthy provides a secure online platform for storing and sharing your power of attorney and other important legal documents.

Notarization

Notarization aims to prevent fraud and ensure the principal is signing the power of attorney voluntarily and with a clear understanding of its contents. Notaries are trained to look for signs of coercion, duress, or lack of capacity.

To have a power of attorney notarized, the principal must typically appear in person before a notary public and provide valid government-issued photo identification. The notary will then verify the principal's identity, witness the signing of the document, and affix their official seal and signature to the power of attorney.

Notarization requirements vary by state, so it's wise to research your state's specific requirements or work with an attorney to ensure your power of attorney is properly notarized.

Witnesses

Some states require a power of attorney to be signed in the presence of one or more witnesses, who must also sign the document. Witness requirements can vary by state, but generally, a witness must be:

  • At least 18 years old

  • Not named as an agent or attorney-in-fact in the power of attorney

  • Not related to the principal by blood, marriage, or adoption

  • Not a caregiver or healthcare provider for the principal

When signing as a witness, the individual is attesting that they saw the principal sign the power of attorney and that the principal appeared to be of sound mind and under no duress or undue influence.

Specific Language

Certain states require specific language or provisions to be included in a power of attorney for it to be legally enforceable. This language may relate to the powers being granted, the duration of the document, or the principal's right to revoke the power of attorney.

For example, some states may require a power of attorney to include specific language indicating it’s a "durable" power of attorney that remains in effect even if the principal becomes incapacitated. Other states require language specifying that the agent has the authority to make gifts on behalf of the principal.

If you're unsure about the specific language requirements in your state, it's always best to consult with an attorney. 


Step 5: Review and Update Your Power of Attorney Regularly

review and update your power of attorney regularly

Once you've created your power of attorney, reviewing and updating the document regularly is essential to ensure it reflects your current wishes and circumstances. Some events that may trigger a review of your POA include:

  1. Changes in your health or cognitive abilities

  2. Changes in your financial or personal circumstances

  3. Changes in your relationship with your chosen agent

  4. Changes in your state's laws or regulations governing powers of attorney

By keeping your power of attorney up to date, you can ensure that your affairs will be managed according to your current preferences and that your agent will have the necessary authority to act on your behalf.

It's important to note that a power of attorney is only valid during your lifetime. If you pass away, your agent's authority ends, and your estate will be managed according to the terms of your will or trust.


FAQs

Can I have multiple agents in my power of attorney?

Yes, you can name multiple agents in your power of attorney. This can be useful if you want to divide responsibilities among different people or ensure there’s a backup agent. However, be sure to specify whether the agents can act independently or must make decisions jointly.

Can I revoke or change my power of attorney?

Yes, you can revoke or change your power of attorney at any time as long as you are mentally competent. To revoke a power of attorney, you should notify your agent in writing and destroy all copies of the document. To change your power of attorney, you will need to create a new document that reflects your current wishes and revokes the previous POA.

What happens if my agent abuses their powers or acts against my wishes?

If your agent misuses their authority or fails to act in your best interests, you can revoke the power of attorney and take legal action against them if necessary. This is why it's important to choose a trustworthy and reliable agent who will follow your instructions and act in good faith.

Estate Planning

How to Draft a Power of Attorney: A Step-by-Step Guide

Ty McDuffey

April 26, 2024

|

how to draft a power of attorney

The intelligent digital vault for families

Trustworthy protects and optimizes important family information so you can save time, money, and enjoy peace of mind

Whether you need a power of attorney (POA) for financial matters, healthcare decisions, or other personal affairs, it's important to draft it correctly. This ensures your wishes are carried out and your interests are protected.

We’ll explain how to write a power of attorney and show you the important steps to take during the process.


Key Takeaways:

  • First, determine the type of power of attorney based on your specific circumstances and requirements.

  • Choose a trusted and reliable person to serve as your agent or attorney-in-fact.

  • Be specific about the powers you want to grant and any limitations or restrictions you want to impose.

Step 1: Determine the Type of Power of Attorney You Need

determine the type of power of attorney

The first step in writing a power of attorney is determining the type of POA that best suits your needs. 

General Power of Attorney

A general power of attorney (POA) is a legal document granting powers to your chosen agent or attorney-in-fact to act on your behalf in financial and legal matters. This type of POA is often used temporarily, such as when traveling, physically or mentally unable to handle your affairs, or simply needing assistance with day-to-day tasks.

When you create a general POA, you give your agent the authority to make decisions and take actions in your name, such as:

  • Managing your bank accounts and financial transactions

  • Paying your bills and handling your taxes

  • Buying, selling, or managing your real estate properties

  • Handling your insurance matters and legal affairs

  • Accessing your safe deposit boxes and other secure storage

  • Making gifts or donations on your behalf (if specifically authorized)

A general POA is typically valid for a specific period or until you revoke it.

Durable Power of Attorney

A durable power of attorney remains in effect even if you become incapacitated or unable to make decisions for yourself. It continues to be valid and allows your agent to manage your affairs on your behalf.

There are two main types of durable POAs:

  • Immediate Durable Power of Attorney: It takes effect once you sign it and remains valid even if you become incapacitated later. Your agent can begin acting on your behalf immediately, without additional documentation or court intervention.

  • Springing Durable Power of Attorney: It "springs" into effect only when a specific event occurs, such as when you become incapacitated. Until that event occurs, your agent does not have the authority to act on your behalf.

Durable POAs are commonly used for long-term financial management and healthcare decision-making. 

Healthcare Power of Attorney

A healthcare power of attorney (also known as a medical power of attorney) is a legal document granting your chosen agent the authority to make medical decisions on your behalf if you cannot do so yourself. This type of POA is often used with a living will, which outlines your specific wishes for end-of-life care.

When you create a healthcare POA, you give your agent the power to:

  • Make decisions about your medical treatment, including consenting to or refusing procedures, medications, and surgeries

  • Access your medical records and communicate with your healthcare providers

  • Decide on your living arrangements, such as admitting you to a hospital, nursing home, or hospice care

  • Enforce your wishes regarding life-sustaining treatments, as outlined in your living will

A healthcare POA ensures that your medical wishes are respected if you become incapacitated due to illness, injury, or age-related cognitive decline. 

Limited or Special Power of Attorney

A limited or special power of attorney grants specific powers to your agent for a particular purpose or transaction. Unlike a general POA, which gives your agent broad authority, a limited or special POA restricts their powers to a specific task or set of tasks.

Some common examples of limited or special POAs include:

  • Real Estate Power of Attorney

  • Vehicle Power of Attorney

  • Investment Power of Attorney

  • Business Power of Attorney

By tailoring the POA to your specific needs, you can maintain control over your affairs while still getting the required assistance.


Step 2: Choose Your Agent

choose your agent

Choosing the right person to serve as your agent or attorney-in-fact is paramount. This person will have significant authority over your affairs, so selecting the right person is essential.

When choosing an agent, consider the following factors:

  • Trustworthiness: Choose someone you trust completely to follow your wishes and act in your best interests, even in difficult or stressful situations.

    Clinton M. Sandvick, JD, Ph.D., advises:

    "The agent should also have the necessary background and understand the situation they will be put in when the power of attorney goes into effect. Consider the age, health, and location of potential agents."

  • Reliability: Select an agent who is responsible, organized, and capable of handling the role's duties and responsibilities.

  • Proximity: Consider choosing an agent who lives nearby or is easily accessible, especially if they need to make decisions or take action on short notice.

  • Willingness: Ensure your chosen agent is willing and able to serve in this role and understands the responsibilities involved.

It's also a good idea to name a successor agent in case your primary agent is unable or unwilling to serve when needed.


Step 3: Specify the Powers You Want to Grant

specify the powers you want to grant

Be specific about the powers you want to grant to your agent. Clearly define the scope of their authority and any limitations or restrictions you want to impose.

Some common powers granted in a POA include:

Financial Powers

When granting financial powers to your agent through a power of attorney, you enable them to manage your financial affairs on your behalf. This can include a wide range of tasks, such as:

  • Accessing and managing your bank accounts, including checking, savings, and investment accounts

  • Writing checks and making deposits or withdrawals on your behalf

  • Paying your bills, such as utilities, credit cards, and mortgage or rent payments

By granting financial powers to your agent, you entrust them with responsibility for your financial well-being. Choose someone you trust to make sound decisions and act in your best interests.

Real Estate Powers

Real estate powers allow your agent to make decisions related to your real estate properties. This can include:

  • Buying or selling real estate on your behalf, including negotiating prices, signing contracts, and handling closing procedures

  • Refinancing or obtaining mortgages for your properties

  • Managing your rental properties, including finding tenants, collecting rent, and handling maintenance and repairs

By granting real estate powers to your agent, you're allowing them to make important decisions about your properties. Choose someone with the necessary knowledge and experience to handle these matters effectively.

Legal Powers

Legal powers authorize your agent to make legal decisions and act on your behalf. This can include:

  • Entering into contracts or agreements in your name, such as leases, service contracts, or business agreements

  • Hiring and communicating with attorneys to represent your interests in legal matters

  • Making decisions related to legal proceedings, such as settling claims or lawsuits, or filing appeals

Legal powers can significantly affect your rights and obligations, so choose an agent capable of making sound legal decisions in your best interests.

Healthcare Powers

Healthcare powers give your agent the authority to make medical decisions and take actions related to your healthcare when you cannot do so yourself. This can include:

  • Making decisions about your medical treatment, such as consenting to or refusing surgeries, medications, or other procedures

  • Accessing your medical records and communicating with your healthcare providers about your condition and treatment options

  • Enforcing your wishes regarding life-sustaining treatments, as outlined in your living will or advance directive

It's important to choose an agent who understands your values and preferences and is willing to advocate for your best interests in medical situations.

Creating a power of attorney is a key step in protecting your interests and ensuring your affairs are managed according to your wishes. By using Trustworthy to store and share your POA securely, you can have confidence that your legal and financial matters will be handled properly, even if you become unable to manage them yourself.


Step 4: Ensure Compliance with State Laws

ensure compliance with state laws

Each state has legal requirements for creating a valid power of attorney. Ensure your POA complies with your state's laws and is properly executed and notarized.

Some common requirements for a valid power of attorney include:

Written Document

Most states require a power of attorney in writing and signed by the principal (the person granting the powers) for it to be legally valid. This helps to ensure the principal's wishes are clearly documented and can be easily verified if needed.

When creating a written power of attorney, include the following information:

  • The name and contact information of the principal

  • The name and contact information of the agent or attorney-in-fact

  • The specific powers being granted to the agent

  • The duration of the power of attorney (e.g., whether it is durable or expires on a specific date)

  • The principal's signature and the date of signing


    Once you create your power of attorney, you need to store the document securely and ensure your agent and other trusted parties can access it when needed. Trustworthy provides a secure online platform for storing and sharing your power of attorney and other important legal documents.

Notarization

Notarization aims to prevent fraud and ensure the principal is signing the power of attorney voluntarily and with a clear understanding of its contents. Notaries are trained to look for signs of coercion, duress, or lack of capacity.

To have a power of attorney notarized, the principal must typically appear in person before a notary public and provide valid government-issued photo identification. The notary will then verify the principal's identity, witness the signing of the document, and affix their official seal and signature to the power of attorney.

Notarization requirements vary by state, so it's wise to research your state's specific requirements or work with an attorney to ensure your power of attorney is properly notarized.

Witnesses

Some states require a power of attorney to be signed in the presence of one or more witnesses, who must also sign the document. Witness requirements can vary by state, but generally, a witness must be:

  • At least 18 years old

  • Not named as an agent or attorney-in-fact in the power of attorney

  • Not related to the principal by blood, marriage, or adoption

  • Not a caregiver or healthcare provider for the principal

When signing as a witness, the individual is attesting that they saw the principal sign the power of attorney and that the principal appeared to be of sound mind and under no duress or undue influence.

Specific Language

Certain states require specific language or provisions to be included in a power of attorney for it to be legally enforceable. This language may relate to the powers being granted, the duration of the document, or the principal's right to revoke the power of attorney.

For example, some states may require a power of attorney to include specific language indicating it’s a "durable" power of attorney that remains in effect even if the principal becomes incapacitated. Other states require language specifying that the agent has the authority to make gifts on behalf of the principal.

If you're unsure about the specific language requirements in your state, it's always best to consult with an attorney. 


Step 5: Review and Update Your Power of Attorney Regularly

review and update your power of attorney regularly

Once you've created your power of attorney, reviewing and updating the document regularly is essential to ensure it reflects your current wishes and circumstances. Some events that may trigger a review of your POA include:

  1. Changes in your health or cognitive abilities

  2. Changes in your financial or personal circumstances

  3. Changes in your relationship with your chosen agent

  4. Changes in your state's laws or regulations governing powers of attorney

By keeping your power of attorney up to date, you can ensure that your affairs will be managed according to your current preferences and that your agent will have the necessary authority to act on your behalf.

It's important to note that a power of attorney is only valid during your lifetime. If you pass away, your agent's authority ends, and your estate will be managed according to the terms of your will or trust.


FAQs

Can I have multiple agents in my power of attorney?

Yes, you can name multiple agents in your power of attorney. This can be useful if you want to divide responsibilities among different people or ensure there’s a backup agent. However, be sure to specify whether the agents can act independently or must make decisions jointly.

Can I revoke or change my power of attorney?

Yes, you can revoke or change your power of attorney at any time as long as you are mentally competent. To revoke a power of attorney, you should notify your agent in writing and destroy all copies of the document. To change your power of attorney, you will need to create a new document that reflects your current wishes and revokes the previous POA.

What happens if my agent abuses their powers or acts against my wishes?

If your agent misuses their authority or fails to act in your best interests, you can revoke the power of attorney and take legal action against them if necessary. This is why it's important to choose a trustworthy and reliable agent who will follow your instructions and act in good faith.

Estate Planning

How to Draft a Power of Attorney: A Step-by-Step Guide

Ty McDuffey

April 26, 2024

|

how to draft a power of attorney

The intelligent digital vault for families

Trustworthy protects and optimizes important family information so you can save time, money, and enjoy peace of mind

Whether you need a power of attorney (POA) for financial matters, healthcare decisions, or other personal affairs, it's important to draft it correctly. This ensures your wishes are carried out and your interests are protected.

We’ll explain how to write a power of attorney and show you the important steps to take during the process.


Key Takeaways:

  • First, determine the type of power of attorney based on your specific circumstances and requirements.

  • Choose a trusted and reliable person to serve as your agent or attorney-in-fact.

  • Be specific about the powers you want to grant and any limitations or restrictions you want to impose.

Step 1: Determine the Type of Power of Attorney You Need

determine the type of power of attorney

The first step in writing a power of attorney is determining the type of POA that best suits your needs. 

General Power of Attorney

A general power of attorney (POA) is a legal document granting powers to your chosen agent or attorney-in-fact to act on your behalf in financial and legal matters. This type of POA is often used temporarily, such as when traveling, physically or mentally unable to handle your affairs, or simply needing assistance with day-to-day tasks.

When you create a general POA, you give your agent the authority to make decisions and take actions in your name, such as:

  • Managing your bank accounts and financial transactions

  • Paying your bills and handling your taxes

  • Buying, selling, or managing your real estate properties

  • Handling your insurance matters and legal affairs

  • Accessing your safe deposit boxes and other secure storage

  • Making gifts or donations on your behalf (if specifically authorized)

A general POA is typically valid for a specific period or until you revoke it.

Durable Power of Attorney

A durable power of attorney remains in effect even if you become incapacitated or unable to make decisions for yourself. It continues to be valid and allows your agent to manage your affairs on your behalf.

There are two main types of durable POAs:

  • Immediate Durable Power of Attorney: It takes effect once you sign it and remains valid even if you become incapacitated later. Your agent can begin acting on your behalf immediately, without additional documentation or court intervention.

  • Springing Durable Power of Attorney: It "springs" into effect only when a specific event occurs, such as when you become incapacitated. Until that event occurs, your agent does not have the authority to act on your behalf.

Durable POAs are commonly used for long-term financial management and healthcare decision-making. 

Healthcare Power of Attorney

A healthcare power of attorney (also known as a medical power of attorney) is a legal document granting your chosen agent the authority to make medical decisions on your behalf if you cannot do so yourself. This type of POA is often used with a living will, which outlines your specific wishes for end-of-life care.

When you create a healthcare POA, you give your agent the power to:

  • Make decisions about your medical treatment, including consenting to or refusing procedures, medications, and surgeries

  • Access your medical records and communicate with your healthcare providers

  • Decide on your living arrangements, such as admitting you to a hospital, nursing home, or hospice care

  • Enforce your wishes regarding life-sustaining treatments, as outlined in your living will

A healthcare POA ensures that your medical wishes are respected if you become incapacitated due to illness, injury, or age-related cognitive decline. 

Limited or Special Power of Attorney

A limited or special power of attorney grants specific powers to your agent for a particular purpose or transaction. Unlike a general POA, which gives your agent broad authority, a limited or special POA restricts their powers to a specific task or set of tasks.

Some common examples of limited or special POAs include:

  • Real Estate Power of Attorney

  • Vehicle Power of Attorney

  • Investment Power of Attorney

  • Business Power of Attorney

By tailoring the POA to your specific needs, you can maintain control over your affairs while still getting the required assistance.


Step 2: Choose Your Agent

choose your agent

Choosing the right person to serve as your agent or attorney-in-fact is paramount. This person will have significant authority over your affairs, so selecting the right person is essential.

When choosing an agent, consider the following factors:

  • Trustworthiness: Choose someone you trust completely to follow your wishes and act in your best interests, even in difficult or stressful situations.

    Clinton M. Sandvick, JD, Ph.D., advises:

    "The agent should also have the necessary background and understand the situation they will be put in when the power of attorney goes into effect. Consider the age, health, and location of potential agents."

  • Reliability: Select an agent who is responsible, organized, and capable of handling the role's duties and responsibilities.

  • Proximity: Consider choosing an agent who lives nearby or is easily accessible, especially if they need to make decisions or take action on short notice.

  • Willingness: Ensure your chosen agent is willing and able to serve in this role and understands the responsibilities involved.

It's also a good idea to name a successor agent in case your primary agent is unable or unwilling to serve when needed.


Step 3: Specify the Powers You Want to Grant

specify the powers you want to grant

Be specific about the powers you want to grant to your agent. Clearly define the scope of their authority and any limitations or restrictions you want to impose.

Some common powers granted in a POA include:

Financial Powers

When granting financial powers to your agent through a power of attorney, you enable them to manage your financial affairs on your behalf. This can include a wide range of tasks, such as:

  • Accessing and managing your bank accounts, including checking, savings, and investment accounts

  • Writing checks and making deposits or withdrawals on your behalf

  • Paying your bills, such as utilities, credit cards, and mortgage or rent payments

By granting financial powers to your agent, you entrust them with responsibility for your financial well-being. Choose someone you trust to make sound decisions and act in your best interests.

Real Estate Powers

Real estate powers allow your agent to make decisions related to your real estate properties. This can include:

  • Buying or selling real estate on your behalf, including negotiating prices, signing contracts, and handling closing procedures

  • Refinancing or obtaining mortgages for your properties

  • Managing your rental properties, including finding tenants, collecting rent, and handling maintenance and repairs

By granting real estate powers to your agent, you're allowing them to make important decisions about your properties. Choose someone with the necessary knowledge and experience to handle these matters effectively.

Legal Powers

Legal powers authorize your agent to make legal decisions and act on your behalf. This can include:

  • Entering into contracts or agreements in your name, such as leases, service contracts, or business agreements

  • Hiring and communicating with attorneys to represent your interests in legal matters

  • Making decisions related to legal proceedings, such as settling claims or lawsuits, or filing appeals

Legal powers can significantly affect your rights and obligations, so choose an agent capable of making sound legal decisions in your best interests.

Healthcare Powers

Healthcare powers give your agent the authority to make medical decisions and take actions related to your healthcare when you cannot do so yourself. This can include:

  • Making decisions about your medical treatment, such as consenting to or refusing surgeries, medications, or other procedures

  • Accessing your medical records and communicating with your healthcare providers about your condition and treatment options

  • Enforcing your wishes regarding life-sustaining treatments, as outlined in your living will or advance directive

It's important to choose an agent who understands your values and preferences and is willing to advocate for your best interests in medical situations.

Creating a power of attorney is a key step in protecting your interests and ensuring your affairs are managed according to your wishes. By using Trustworthy to store and share your POA securely, you can have confidence that your legal and financial matters will be handled properly, even if you become unable to manage them yourself.


Step 4: Ensure Compliance with State Laws

ensure compliance with state laws

Each state has legal requirements for creating a valid power of attorney. Ensure your POA complies with your state's laws and is properly executed and notarized.

Some common requirements for a valid power of attorney include:

Written Document

Most states require a power of attorney in writing and signed by the principal (the person granting the powers) for it to be legally valid. This helps to ensure the principal's wishes are clearly documented and can be easily verified if needed.

When creating a written power of attorney, include the following information:

  • The name and contact information of the principal

  • The name and contact information of the agent or attorney-in-fact

  • The specific powers being granted to the agent

  • The duration of the power of attorney (e.g., whether it is durable or expires on a specific date)

  • The principal's signature and the date of signing


    Once you create your power of attorney, you need to store the document securely and ensure your agent and other trusted parties can access it when needed. Trustworthy provides a secure online platform for storing and sharing your power of attorney and other important legal documents.

Notarization

Notarization aims to prevent fraud and ensure the principal is signing the power of attorney voluntarily and with a clear understanding of its contents. Notaries are trained to look for signs of coercion, duress, or lack of capacity.

To have a power of attorney notarized, the principal must typically appear in person before a notary public and provide valid government-issued photo identification. The notary will then verify the principal's identity, witness the signing of the document, and affix their official seal and signature to the power of attorney.

Notarization requirements vary by state, so it's wise to research your state's specific requirements or work with an attorney to ensure your power of attorney is properly notarized.

Witnesses

Some states require a power of attorney to be signed in the presence of one or more witnesses, who must also sign the document. Witness requirements can vary by state, but generally, a witness must be:

  • At least 18 years old

  • Not named as an agent or attorney-in-fact in the power of attorney

  • Not related to the principal by blood, marriage, or adoption

  • Not a caregiver or healthcare provider for the principal

When signing as a witness, the individual is attesting that they saw the principal sign the power of attorney and that the principal appeared to be of sound mind and under no duress or undue influence.

Specific Language

Certain states require specific language or provisions to be included in a power of attorney for it to be legally enforceable. This language may relate to the powers being granted, the duration of the document, or the principal's right to revoke the power of attorney.

For example, some states may require a power of attorney to include specific language indicating it’s a "durable" power of attorney that remains in effect even if the principal becomes incapacitated. Other states require language specifying that the agent has the authority to make gifts on behalf of the principal.

If you're unsure about the specific language requirements in your state, it's always best to consult with an attorney. 


Step 5: Review and Update Your Power of Attorney Regularly

review and update your power of attorney regularly

Once you've created your power of attorney, reviewing and updating the document regularly is essential to ensure it reflects your current wishes and circumstances. Some events that may trigger a review of your POA include:

  1. Changes in your health or cognitive abilities

  2. Changes in your financial or personal circumstances

  3. Changes in your relationship with your chosen agent

  4. Changes in your state's laws or regulations governing powers of attorney

By keeping your power of attorney up to date, you can ensure that your affairs will be managed according to your current preferences and that your agent will have the necessary authority to act on your behalf.

It's important to note that a power of attorney is only valid during your lifetime. If you pass away, your agent's authority ends, and your estate will be managed according to the terms of your will or trust.


FAQs

Can I have multiple agents in my power of attorney?

Yes, you can name multiple agents in your power of attorney. This can be useful if you want to divide responsibilities among different people or ensure there’s a backup agent. However, be sure to specify whether the agents can act independently or must make decisions jointly.

Can I revoke or change my power of attorney?

Yes, you can revoke or change your power of attorney at any time as long as you are mentally competent. To revoke a power of attorney, you should notify your agent in writing and destroy all copies of the document. To change your power of attorney, you will need to create a new document that reflects your current wishes and revokes the previous POA.

What happens if my agent abuses their powers or acts against my wishes?

If your agent misuses their authority or fails to act in your best interests, you can revoke the power of attorney and take legal action against them if necessary. This is why it's important to choose a trustworthy and reliable agent who will follow your instructions and act in good faith.

Try Trustworthy today.

Try Trustworthy today.

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microsoft word obituary template
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Woman talking with an advisor in a house
Woman talking with an advisor in a house