Powers of attorney come in many different flavors. Some are for medical and health care purposes while others are for financial and property matters. Some are general in nature while others are limited to a particular purpose. Suppose a couple is moving to another area and one stays behind to sell the house and take care of other business. A power of attorney can be drafted solely for the purpose of allowing the spouse that stayed behind to sign documents for the sale of and closing on the home. This is called a special power of attorney as it is for a limited purpose. Special powers of attorney can be tailored to the very specific needs of the parties. A general power of attorney allows the named party to act just as the person who executed the document can act in dealing with finances and property in most instances. A durable power of attorney is one that allows the named party to act even if the person who executed it is incapacitated. A springing power of attorney is one that only becomes effective upon the occurrence of an event such as the disability of the person who executed it for example.
One of the problems with a general power of attorney is that there are no meaningful safeguards and so a person who has executed one is depending on their attorney in fact not to abuse the power given. In other words, you really need to trust the person who you are appointing. If powers of attorney can be used against the person then why should someone consider having a power of attorney? In many instances a power of attorney is prepared and executed so that if the person becomes incompetent it will be unnecessary to have a conservator appointed.
Suppose one of your parents or another family member becomes unable to handle his own affairs because of an injury or disease that renders him or her incompetent. And suppose that family member never executed a power of attorney. What do you do? To gain authority to handle his or her affairs you would need to file a petition in Circuit Court requesting to be appointed as conservator to handle financial matters and as Guardian to handle health care and personal matters. A guardian ad litem (another lawyer) would need to be appointed to represent the interests of the incapacitated family member and medical evidence will need to be provided at a hearing before a Judge. If you are appointed Conservator you will need to post a bond with corporate surety which means that there will you will need to pay from the estate funds the premium for this corporate surety as well as prepare accountings that are filed annually with the local Commissioner of Accounts. This is all very time consuming and expensive to the estate. On the other hand, this process does provide some supervision and protection against someone who would take advantage of a disabled person.
A power of attorney is a useful device for a particular purpose and can save a lot of time, expense, and sometimes anguish when needed for an incompetent person. Choose wisely who your agent or agents will be and consider a substitute in case your original is not available when needed. Choosing two agents who must act together may give some security that the power will not be abused, but makes acting on your behalf more cumbersome.
