Durable Power of Attorney, Q & A

Questions Answers
What is a Power of Attorney? A Power of Attorney allows you to name another to act on your behalf for financial matters when you are unwilling or unable to act for yourself.
Why should I have a Power of Attorney? To have someone handle your financial affairs:
  • While you are temporarily absent,
  • While you are incapacitated,
  • So you, rather than a court, can decide who is best able to handle your finances, and
  • To save time and money.
What are potential costs of not having a Power of Attorney?
  • Petitioning court to declare your incompetency.
  • Petitioning court to appoint a guardian.
  • Guardian posting bond.
  • Guardian filing accountings with court.
  • Legal Fees.
  • Delays.
  • Stress on family.
When is my Power of Attorney Valid?
  • Usually valid at signing.
  • If you want, it could be valid ONLY when you are incapacitated, or in other circumstances you may name.
  • Can remain valid until death or revocation.
What do I call the person who holds this power? This person is your Attorney-in-fact.
Who should I name as my Attorney-in-fact?
  • Someone you trust with your financial affairs, who knows you and understands your wishes.
  • Someone able and knowledgeable.
  • Someone willing.
What if the person I name is unwilling or unable to serve? You can name multiple alternates.
What is Registration? Should I register my Power of Attorney?
  • Registration involves taking the Power of Attorney to the Register of Deeds and having the document become of public record.
  • Your Power of Attorney does not have to be registered unless you are incapacitated.
  • If you do register your Power of Attorney, it will be safe and easy to locate.
  • Must be recorded in the Register of Deeds in every county you own real estate before it can be used in that county.
Where should I keep my Power of Attorney?
  • You and your Attorney-in-fact should have copies.
  • You could register it immediately.
  • Institutions with which you have significant relationships should have a copy.
Should my Attorney-in-Fact have the ability to make gifts? Because your Attorney-in-fact can have complete control over your finances, allowing them the power to give your property away should be carefully considered. However, this power is often necessary for planning purposes and access to funds by your family. Without this power, no gifts can be made. If you choose, this power could be limited to the following:
  • Gifts only to your spouse or children,
  • Gifts only to persons you have given to before, or
  • $13,000 per year, per recipient.
Can my Attorney-in-fact make charitable gifts? Not unless you so specifically provide in the Power of Attorney, and then only as you specify.
Can more than one person act as my Attorney-in-fact at the same time?
  • Yes, you could name more than one to act together.
  • You could require the two attorneys-in-fact to act together, or you could allow them to act individually.
Can my Attorney-in-fact help support my family, or is my Attorney-in-fact limited to helping me? Other than gifting, your Attorney-in-fact could:
  • Pay for the support or maintenance of your family, or
  • Pay for health care needs of your family.
Will my Attorney-in-fact get paid?
  • An individual acting as your Attorney-in-fact could either not get paid, could get paid as you designate, or could petition the clerk of court for compensation from your assets.
  • A corporate Attorney-in-fact will be paid.
Does my Attorney-in-fact become liable for my debts? Could I become liable for his debts? No, and no!
  • Your debts are separate from your Attorney-in- fact, even though he can often borrow or sign contracts for you. Therefore, your Attorney-in- fact cannot become liable for your debts through the Power of Attorney.
  • Though your Attorney-in-fact has control over your assets, his creditors have NO ACCESS to your assets.
How does my Attorney-in-Fact sign documents? “His or her name,” as Attorney-in-Fact for “Your Name”.