A power of attorney is a legal document by which a person (represented) grants another individual or group of persons (representative) the authority to make decisions in their name and on their behalf regarding financial, health, personal well-being or other legal matters. A power of attorney is useful if you are ill or physically incapacitated, or if you want someone to make choices for you if you are unable to do so. You can also use this document if you intend to go abroad and want someone to take over the situation in your absence.
Steps
Part 1 of 5: Deciding whether to Grant a Power of Attorney or Prefer Legal Protection
Step 1. Talk to your loved ones about the power of attorney
If you want your relative to be empowered to make decisions for you, discuss with them why they would take control. Make sure you choose a person who respects your wishes and who actually acts for your good once he has the power.
- If you want to act on someone else's behalf, the easiest way to do this is to get the permission of the person who should give you the right to make the decisions for them.
- If a loved one has a terminal illness and knows that one day they will not be able to make financial or medical decisions, they may decide to give power of attorney to someone else.
Step 2. Decide whether to choose power of attorney or legal protection
To bestow this power on someone, he must be in full possession of his mental faculties. Talk to your loved one to make sure they understand the meaning that comes with granting this responsibility, including what types of decisions will be made for them.
- If your loved one is no longer able to understand and will, but has in the past granted the power of attorney to you or someone else in a living will, you don't need to follow the steps required to obtain this power.
- If your loved one is no longer able to understand and will and has not given power of attorney in a living will, you may need to obtain adult guardianship or custody in order to legally deal with their business.
Step 3. Consider whether to seek custody or legal protection
If you feel that you need to exercise control over the decisions of someone who is unable to do it on their own, you need to consult a lawyer to find out what steps to take. To obtain custody of someone, this person must be recognized as incapable of understanding and wanting by the judge. What does it mean? Which is unable to meet its basic needs. If you believe you know someone who meets these requirements, you can apply for the purpose of being appointed guardian.
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It will be the judicial office competent for the territory in which this person lives that will have to examine the situation. Once the request has been submitted, a hearing will be scheduled where the potential guardian will have to prove that:
- It is suitable for implementing the functions of a guardian.
- The person to whom he will have to act as guardian is partially or totally incapable of understanding and willing.
- There are no viable and feasible alternatives regarding custody.
- All interested parties, including the person potentially in need of a guardian, can contest the custody request. For example, if you believe your elderly mother has senile dementia and you need to look after her, you can file a request and get a hearing, but she can appeal it. So you have to prove that she is indeed suffering from senile dementia to take control.
Part 2 of 5: Determine the Right Power of Attorney Type
Step 1. Decide if the power of attorney should be financial
A power of attorney of this type concerns the finances of the principal, or of the person who confers decision-making power over his assets on the representative. It will be necessary to provide this document to banks and other institutions where the representative will have to make financial choices on behalf of the principal.
Step 2. Decide if the power of attorney should be medical
A health power of attorney allows a person to make medical decisions for an individual unable to do so. You should provide the document to hospitals, doctors, and any other places where the representative will need to make medical choices for the principal.
If you want to assign both a financial and a medical power of attorney, remember that it does not have to be the same person to act as a representative in both circumstances. However, the two people will need to work together to act in your best interest, so choose individuals who can do so
Step 3. Determine if the power of attorney should be permanent
In this case, it has an immediate effect. It will remain valid even when the person who granted it is unable to go about his business.
- For example, many seriously ill people decide to grant a permanent power of attorney. In fact, they want their representative to continue making decisions once they are no longer able to communicate their wishes. Also, due to the illness, they prefer that the power of attorney take effect immediately.
- If the word "permanent" is not specified, the power of attorney will cancel when the person who granted it becomes incapable of understanding and wanting.
Step 4. Determine if the power of attorney should go into effect on a certain date
In this case, it becomes valid on the basis of what is established by the represented person. For example, if you want to grant a financial power of attorney during your stay abroad, you can specify that the document will start to be binding on the day of your departure.
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In addition, it is possible to combine the permanent power of attorney and the one subject to time conditions. The latter does not enter into force until it is specified by the person who granted it (for example, when it ceases to be self-sufficient) and remains valid for the entire period of the represented person's incapacity. This implies that the representative proves the incapacity of the principal before the power of attorney begins to take effect.
Before applying for one of these specific powers of attorney, learn more about the laws about it by contacting an expert
Step 5. Unless you are sure what you are doing, avoid a general power of attorney
This document could give the representative both financial and medical decision-making power. Make sure you are using the correct document for your situation. In some cases, such as a serious illness, a general power of attorney might make more sense.
Part 3 of 5: Grant Power of Attorney to Someone
Step 1. Choose a person you trust
The individual to whom you assign the role of representative will have the power to make financial and / or medical decisions for you. You need to make sure you trust him, and he should have the right knowledge on economic and health matters.
Step 2. Consider the age, health status and where potential representatives live
Keep in mind that the person chosen for this role will make extremely important decisions for you. Assess his age, health conditions and where he lives.
For example, if the representative does not live near you, it may be difficult for him to build the necessary relationship with banks (in the case of a financial power of attorney) or doctors (in the case of a medical power of attorney)
Step 3. Consider the representative's religion and lifestyle preferences
While a trusted person must first be chosen, you must make sure that he does not refuse to satisfy your wishes on the basis of his own moral or religious ideas. You need to be sure that he can put aside any personal opinions in favor of your needs.
For example, some people strongly oppose cardiopulmonary or artificial resuscitation, artificial nutrition and hydration, while others strongly believe in these practices
Part 4 of 5: Prepare the Power of Attorney
Step 1. Find out about the legal requirements for the place where you live
Generally, they are similar in various places, but some details and ways of requesting can change. To find out more, consult a lawyer, especially if the situation is complicated. In fact, a professional will help you and your loved ones prepare everything you need to grant a power of attorney. Usually, the document must:
- Clearly identify the person represented (the person empowering).
- Clearly identify the representative (the person who will have specific powers).
- Establish exactly the legal actions the representative is authorized to perform.
Step 2. Download a document or write it yourself
If in doubt, ask the relevant judicial office or a lawyer for clarification. To prevent confusion and to ensure that both parties know exactly the nature of the authority granted, it is important to draw up a document that is clear and that gives all the information required by law.
The specific details of the power of attorney differ depending on your situation and the rights assigned. Ask for information at the judicial office or your lawyer
Step 3. Name the parts
The form should include the full name of the principal, i.e. the person granting the power of attorney. It should also indicate the representative, that is, the individual to whom the power will be assigned. If the first representative is unable or unwilling to exercise his authority, alternative representatives may be appointed.
Step 4. Indicate the powers granted
Make sure you clearly and specifically identify the rights that will be assigned to the representative, when they will become valid and when (if any) they will cease to have effect. In this space, you also need to determine whether the document is permanent or will come into effect on a certain date, if applicable. This will prevent confusion.
- For example, instead of writing that the representative manages the principal's finances, he states that the representative has the power to withdraw money and make payments using the principal's three bank accounts: account X, account Y, and account Z.
- If the power of attorney is permanent, it is particularly important to ensure that the principal and the representative agree on what responsibilities and authority will be assigned.
Step 5. Try to understand what powers a representative cannot confer
Remember that there are responsibilities that cannot be transferred. If by law it is impossible to do so, the power of attorney will not be valid for that power.
For example, to the extent that the principal and the representative agree, the representative cannot write or enact a will for the principal, otherwise the document will be invalid
Step 6. Look for witnesses
In some countries, the document must be signed in the presence of one or two people. In this case, make sure that witnesses are not only present, but also pay full attention as the principal and representative sign the document. They should have no problem certifying the authenticity of the document.
- This law doesn't apply everywhere, so get informed.
- To find out more, contact the relevant judicial office or a lawyer.
Step 7. Prepare a power of attorney revocation if you change your mind
If you have assigned a power of attorney that has not yet expired, but you no longer want it to take effect, you can withdraw it by following the laws that allow you to make it void. To make sure you do this correctly, talk to your attorney.
If you can't afford to pay a lawyer, go to legal aid
Part 5 of 5: Protect the Prosecutor's Office
Step 1. Consider hiring a lawyer to correct the document
A professional is able to inform you about legal matters that non-expert people would not think they would include or overlook. For example, a lawyer might notice that the document has potentially ambiguous language and can lend itself to confusion.
Step 2. Get the document authenticated
In some countries it is not mandatory. However, authenticating the signature of the principal eliminates all doubts as to its validity. The notary must verify the identity of the person represented before testifying the legality of the signature. This step reduces the risk of being challenged by a third party, who could question the legitimacy of the document.
Contact a notary to find out more
Step 3. Show the document to all institutions where you want it to be recognized
Financial institutions, such as banks and brokerage agencies, do not want to inadvertently accept fraudulent power of attorney documents. They have requirements that must be met in order for the power of attorney to be accepted and for the representative to exercise the indicated powers. To make sure the document is sufficient, show it to the bank and other financial organizations before signing it, so you will know if it will be accepted after signing.
Step 4. Keep the document
A power of attorney should not be filed with a particular agency, but you must have it on hand to present it every time you use it. Store it in a safe place in your home or in a safety deposit box and take it when needed.
