Applying for and Using Lasting Power of Attorney

An enduring power of attorney is an authorization to act on behalf of another person in financial and legal matters that will continue in effect even after the person giving it has died. An attorney-in-fact may be appointed by the person who wishes to use a power of attorney voluntarily or through a court order. The person must designate an agent who will act on their behalf. Once appointed, the attorney-in-fact can make decisions about property, finances and any business transactions. It also continues in effect until the primary agent has died or until the balance of a power of attorney has been dispersed.


There are two ways a power of attorney can be used. The first way is when one person acts as the representative of another person for financial affairs. In this case, the attorney does not give up all rights over the designated agent and can continue to have control over the principal’s finances. Another way an attorney may use this power is when another person serves as an aide or a go-between for the principal and another person.


An enduring power of attorney must be signed with complete words and notarized. It is also advisable to not sign the document while the principal is not legally competent. If the agent has no legal capacity, it is better not to sign or notarize it because once the agent is proven incompetent, the real estate and chain of assets will be liquidated. The probate court may appoint an administrator to handle the estate. If the agent has legal capacity, it is better to sign the document and have it notarized.


Two types of agents exist; absolute and limited. An absolute agent is the one who can do whatever he wants since the principal has the power to appoint him. Limited agents are only allowed to do those things that the principal has given him the ability to do. In making an enduring power of attorney documents effective, they should be exactly used as they are written.


An enduring power of attorney can be revoked or changed anytime a person no longer has the legal authority to do so. For example, a person who has signed the document but is dead or no longer capable of making decisions can revoke it by revoking his powers. One can also appoint another individual as a replacement. If a person appointed as a substitute cannot perform the duties anymore, the original principal should appoint someone who can fill the duties. Sometimes, the original principal does not want a new person to take over his power. Instead, he wants the appointed person to take over the powers whenever he dies or becomes incapacitated. In this case, the attorney can change or revoke the document before the appointment takes effect.


There is no hard and fast rule on how to set up an enduring power of attorney. The most important thing is that it spells out what the parties can and cannot do under the document. It should indicate the parties’ rights and responsibilities regarding financial affairs, wills, and so on. Once an enduring power of attorney is set up, one should keep track of what is happening with their affairs so that the donor knows what to do when those affairs get out of hand.