Consider how close the candidate is to the principal. The agent should be someone who knows the principal well so s/he can make decisions that would align with the principal’s wishes and values. If medical and/or end-of-life decisions are included in the power of attorney, the agent should be aware of the principal’s religious beliefs and wishes. Geographic proximity may also be desirable. Consider whether the candidate is in good health. An agent should be in good health and not likely to become incapacitated. Otherwise, s/he may not be able to carry out decisions on the principal’s behalf. Consider whether you may wish to assign different agents for financial and medical decisions. Power of attorney is a huge responsibility. You may wish to discuss granting separate financial and medical powers of attorney to different people. This will reduce the burden on one person.
A springing power of attorney does not go into effect until a specified qualification is met. Typically, power of attorney is granted following the incapacitation of the principal. [6] X Research source A durable power of attorney goes into effect immediately. It continues to be valid when the person who grants it becomes incapacitated. If the word “durable” is not specified, the power of attorney is voided when the person who granted it becomes incapacitated. [7] X Research source A springing durable power of attorney fits both of the above categories. It often will not go into effect until the person who grants the power of attorney becomes incapacitated. Therefore, a showing of incapacity must be made before the power of attorney will go into effect. [8] X Research source An ordinary or general power of attorney is comprehensive. It gives the agent all the powers, rights, and responsibilities that the person granting POA has. A person can use an ordinary power of attorney if s/he is not incapacitated but needs help in some areas. An ordinary power of attorney usually ends with the death or incapacitation of the person granting POA. A limited power of attorney specifies the purposes for which the person’s agent may act on his/her behalf. For example, it may grant the agent the right to make financial decisions related to property, but not other financial decisions. [9] X Research source
The district court sitting in the county where the principal lives has jurisdiction over the case. Once you file the petition, the court will schedule a hearing. At the hearing, the proposed guardian must establish the incompetence of the proposed ward (the principal) and that no suitable alternatives to guardianship are feasible. Any interested party, including the proposed ward, may challenge the guardianship petition.
You can ask your friends and family for referrals. If you already have another attorney for other matters, s/he may be able to recommend a trusts and estates attorney. County and state bar associations usually offer free referral services. Contact your local bar association and ask them about trusts and estates attorneys.
Check whether or not your state has special forms for power of attorney. You can find the forms on the internet, including USlegalforms. com. [11] X Research source If your situation is complicated and you’re unsure how to proceed, hire an attorney. An attorney can help you and your loved one carry out the proper requirements for granting power of attorney.
See Wisconsin’s Financial Power of Attorney Form for an example of a state-issued power of attorney for finances (https://www. dhs. wisconsin. gov/forms/advdirectives/f00036. pdf). [12] X Research source Wisconsin also provides Health Care Power of Attorney Form that can serve as a sample power of attorney for medical concerns (https://www. dhs. wisconsin. gov/forms/advdirectives/f00085. pdf). [13] X Research source
Make sure the form stipulates whether the powers are “springing,” “durable,” or “springing durable. " These terms will clarify the moment at which power of attorney takes effect and how long it lasts. Again, durable power of attorney allows the agent to continue acting after the principal becomes incapacitated. If the principal wants to continue making decisions until a certain point, choose a springing power of attorney. For example, the power of attorney document could empower the agent when the principal turns 75 or has become incapacitated. Additionally, make sure that the principal and agent know the limits of power of attorney. If the power of attorney purports to transfer a power that cannot be transferred under the law, that part of the power of attorney is void. For instance, even if the principal and the agent agree, the agent cannot write or execute a will for the principal. Any such will is not valid. [14] X Research source [15] X Research source Alternate agents may also be named, in the event that the first agent is unable or unwilling to act on his or her authority.
Specific details are helpful. Instead of saying that the agent “has power over the principal’s finances,” say that the agent “has the power to withdraw money and make payments from the principal’s three bank accounts: bank account X, bank account Y, and bank account Z. ”
Notarizing the power of attorney document reduces the chance that it will be contested by an outside party. [18] X Research source You can check online to see if your state requires notarization. One site that lists such information for all states is USlegal. com. [19] X Research source
