Power of Attorney

• What is a Power of Attorney?
• How to choose an Agent?
• How do I create and Power of Attorney?
• Can I create a Power of Attorney when I am mentally
• Is my Power of Attorney effective after I die?
• Is the Agent required to keep records?
• Does the Agent get paid?
• Are there alternatives to a Durable Power of Attorney?

1. WHAT IS A POWER OF ATTORNEY?

A power of attorney is a document in which you state that you give someone else (usually a relative or friend) the authority to make certain decisions and act on your behalf. The person to whom you give these powers is called an "agent" or "attorney-in-fact." You are called the "principal." Just because the word attorney is used does not mean that the person you give authority to has to be a lawyer.

Executing a power of attorney does not mean that you can no longer make decisions; it just means that another person can act for you also. For example, you may be hospitalized for a brief period of time and need someone to deposit your checks in the bank or pay your bills. As long as you are capable of making decisions, the other person must follow your directions. You are simply sharing your power with someone else. You can revoke the agent's authority under the power of attorney at any time if you become dissatisfied with what they are doing.

The type of power of attorney provided by Legal Services for the Elderly is a durable power of attorney. The word "durable" means that your agent can continue to make decisions for you if you become incapacitated. The agent will still be obligated to act in your best interest, making decisions and using your money and property only for your benefit.

By establishing a durable power of attorney, you are giving the agent some of the following powers:

• To spend your money, cash checks, and withdraw money from your bank accounts

• To sell your property

• To enter into contracts on your behalf

• To pursue insurance claims and legal actions

If you do not establish a durable power of attorney and you become mentally incapacitated, it may be necessary for a court to appoint a guardian or conservator for you.

2. HOW TO CHOOSE AN AGENT?

The person you have designated to be your agent or attorney-in-fact assumes certain duties and responsibilities. The most important obligation of the agent is to act in your best interest. This means they must always follow your instructions. The agent is a "fiduciary", which means that he or she must act with the highest degree of good faith in your behalf.

Although your agent is supposed to make decisions in your best interest and to use your money and property only for your benefit, he or she has great freedom to do as he or she pleases. Therefore, it is essential to choose someone whom you trust when you sign a power of attorney. Before selecting an agent or attorney-in-fact, ask yourself the following questions:

• Do I trust this person?

• Does this person understand my feelings and my point of view? Will he or she follow my wishes if I am ever incapacitated?

• Is this person willing to do the work and spend the time handling my affairs?

• Is this person available to visit me or to keep in contact by phone?

• Is this person knowledgeable about finances? If not, would this person seek the help of experts?

An attorney-in-fact must keep your money separate from his own. He or she must not personally be involved in or stand to profit by any transaction where he/she represents your interests. He must keep separate and accurate records regarding all transactions he engages in for your benefit.

An attorney-in-fact is not permitted to gift or transfer any of your money, personal property or real estate to himself unless the power of attorney contains specific authority to do so. The power of attorney form prepared by Legal Services for the Elderly contains a provision which allows your agent to gift or transfer property to your spouse. This means that if your agent is your spouse, he can gift to himself. Also, an agent other than your spouse can gift and transfer property to your spouse. The power of attorney from prepared by Legal Services for the Elderly does not permit the agent to gift property to other individuals such as your children. Such gifts could affect your eligibility for long term care benefits under Medicaid and could result in other serious consequences.

If you want your agent to have that type of authority, you will need to ask a private attorney to draft a power of attorney document for you. Most people with property (such as a house or a camp), savings (such as bank accounts, stocks, bonds, certificates of deposit) and income (such as salary, pension, Social Security benefits) should seek the advice of a private attorney to draw up a power of attorney. The materials prepared by Legal Services for the Elderly do not give adequate advice on gifting, long term care and estate planning. The financial durable power of attorney form provided by Legal Services for the Elderly is a basic form for people 60 and over with low income and no significant assets; it gives the agent power to handle all aspects of your financial affairs.

3. HOW DO I CREATE A POWER OF ATTORNEY?

When you fill out a power of attorney form you are stating what you, as the principal, want the person acting for you, the agent, to be able to do for you. For the power of attorney to be effective you must be competent to give this authority; that is, you must know and understand what types of decisions need to be made. The financial durable power of attorney should be witnessed by a notary public or attorney. If the durable power of attorney deals with the power to sell, lease, or otherwise dispose of real estate, you should have the power of attorney recorded in the Registry of Deeds, located in the county courthouse where the property is located. If your agent is going to start making transactions for you immediately, you should give him or her the original financial durable power of attorney to show to any person, business or organization involved in the transactions, such as your bank. You should keep a copy for your records. You may also choose to keep the original yourself if you do not want your agent to start conducting you business right away.

4. CAN I CREATE A POWER OF ATTORNEY WHEN I AM MENTALLY INCAPACITATED?

No. In order to create a power of attorney, you must know and understand what you are doing. A person who is mentally incapacitated is not capable of meeting these requirements.

5. CAN I GIVE A POWER OF ATTORNEY IF I CANNOT SIGN MY NAME?

Yes. If you are mentally capable but physically unable to sign your name, any mark made with the full intention that this be your signature is acceptable.

6. CAN I REVOKE MY POWER OF ATTORNEY?

Yes. If for any reason you are no longer comfortable having your chosen agent or agents handle your affairs, you have the right to revoke the power of attorney at any time, as long as you are of sound mind. In order to revoke a durable power of attorney, you simply write or type a statement which includes the following (forms are available from LSE):

• Name and date
• You are of sound mind
• You wish to revoke the durable power of attorney
• Specify the date the original durable power of attorney was executed
• Specify the person or persons named as your agents
• Your signature

Distribute copies of that statement to your agent and to any institutions and agencies, such as banks and hospitals, that had notice of your power of attorney. After you revoke the durable power of attorney, you can 1) execute a new durable power of attorney naming someone else as your agent to handle your affairs; or 2) handle your affairs on your own.

7. IS MY POWER OF ATTORNEY EFFECTIVE AFTER I DIE?

No. A power of attorney ends upon your death. Thereafter your will, or the law of intestacy, governs the handling of your estate. A power of attorney document is not a substitute for a will.

8. IS THE AGENT REQUIRED TO KEEP RECORDS?

The agent should keep separate and accurate records and make them available to you or to persons you designate.

9. DOES AN AGENT GET PAID?

This depends on the relation of the agent and the principal and the duties involved. Normally, in family situations where the attorney-in-fact's duties are simple, no payment is provided. However, if and attorney-in-fact has to run a business or manage complicated financial affairs, then payment if appropriate. Legally, no payment is required. If payment is desired, it should be clearly stated in the power of attorney document. The Legal Services for the Elderly form allows an agent to be reimbursed for costs paid on your behalf.

10. ARE THERE ALTERNATIVES TO A DURABLE POWER OF ATTORNEY?

Yes, guardianship and conservatorship are alternatives. However, these can only be granted by a probate court. Managing your affairs by either alternative can be accomplished more easily and cheaply with a power of attorney. However, in a situation where court review of your affairs is desired, these more formal arrangements may be preferred.

We hope this information has helped you understand the basic principles of powers of attorney. Legal Services for the Elderly offers power of attorney clinics in Augusta, Bangor and Portland where you can execute the document free of charge. LSE may also be able to refer you to a private attorney, either at a full or reduced fee. If you have any questions, please call the Legal Services for the Elderly Hotline at 1-800-750-5353 or (207) 623-1797.

This information was authored and published by Maine Legal Services for the Elderly, providing free legal services to Maine’s socially and economically needy elderly age 60 and over.