General power of attorney

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Power of attorney

What is a power of attorney?

A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor (of the power), and the one authorized to act is the agent, donee, or attorney[1] or, in some common law jurisdictions, the attorney-in-fact. Formerly, a power referred to an instrument under seal while a letter was an instrument under hand, but today both are under hand (i.e., signed by the donor), and therefore there is no difference between the two.

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What are the different types of powers of attorney?

A power of attorney may be special or limited to one specified act or type of act, or it may be general, and whatever it defines as its scope is what a court will enforce as being its scope. (It may also be limited as to time.)

What is a Durable power of attorney?

Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes “incapacitated,” meaning unable to grant such a power, because of physical injury or mental illness, for example, unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated. This type of power of attorney is called “power of attorney with durable provisions” in the United States or “enduring power of attorney” elsewhere. In effect, under a durable power of attorney, the authority of the attorney-in-fact to act and/or make decisions on behalf of the grantor continues until the grantor’s death.

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In some jurisdictions, a durable power of attorney can also be a “health care power of attorney”, commonly called a “living will”. This particular affidavit gives the attorney-in-fact the authority to make health care decisions for the grantor, up to and including terminating care and life support. The grantor under a living will can typically modify or restrict the powers of the agent to make end-of-life decisions. In many jurisdictions a health care power of attorney is also referred to as a “health care proxy” and, as such, the two terms are sometimes used interchangeably.

Related to the health care power of attorney is a separate document known as an advance health care directive, also called a “living will”. A living will is a written statement of a person’s health care and medical wishes but does not appoint another person to make health care decisions. Depending upon the jurisdiction, a health care power of attorney may or may not appear with an advance health care directive in a single, physical document. For example, the California legislature has adopted a standard power of attorney for health care and advance health care directive form that meets all the legal wording requirements for a power of attorney and advance health care directive in California. Compare this to New York State, which enacted a Health Care Proxy law that requires a separate document be prepared appointing one as your health care agent.

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