Power of Attorney Information Package
From LawDepot Law Library
Our Power of Attorney Information Package is your guide to LawDepot.com's Power of Attorney Form.
Glossary of Terms
Alternate Attorney-in-fact – An alternate Attorney-in-fact is someone who is appointed to act as Attorney-in-fact if the primary Attorney-in-fact is unable or unwilling to continue acting for the Principal. While it is a good idea to appoint an alternate Attorney-in-fact, it is not required. (Note: a third party (e.g. the Principal's bank) may require proof that the original Attorney-in-fact is unable to continue as Attorney-in-fact before accepting instructions from the alternate.) Where two Attorneys-in-fact have been appointed, the document may state that if one dies or is otherwise incapable of acting, the other will continue as sole Attorney-in-fact.
Attorney – The Attorney is the person appointed by the Donor to manage his or her financial affairs. The Attorney does not need to be a lawyer. This term is used in Canada, Australia, and the United Kingdom.
Attorney-in-fact – The Attorney-in-fact is the person appointed by the Principal to manage his or her financial affairs. The Attorney-in-fact does not need to be a lawyer. This term is used in the United States.
Co-owned Assets – If your Attorney-in-fact is a family member, you may be joint owners of property. It is important to state this is your document, so that third parties dealing with your Attorney-in-fact understand that the Attorney-in-fact is entitled to co-own assets with you. If this is not stated, the co-owning of assets could give the impression of impropriety on the part of the Attorney-in-fact.
Donor – The Donor is the person who uses a Power of Attorney to grant another person (called the Attorney) permission to manage his or her financial affairs. The Donor must be an adult. The Donor must also be capable of making his or her own decisions at the time the Power of Attorney is executed. This term is used in Canada, Australia, and the United Kingdom.
Durable Power of Attorney – A Durable Power of Attorney is a Power of Attorney which remains valid even if the Principal or Donor later because mentally incompetent. A Durable Power of Attorney becomes invalid upon the death of the Principal or Donor. (Note: The Principal must be mentally competent at the time the Power of Attorney is made in order for it to be valid.)
Execute (a document) – When a person executes a document, he or she signs it with the necessary formalities. For example, if there is a legal requirement that the signature of the document be witnessed, the person executes the document by signing it in the presence of the required number of witnesses.
Governing Law – A Power of Attorney is governed by the law of the jurisdiction where the actions of the Attorney-in-fact will be carried out. When filling out the LawDepot Power of Attorney form, the governing law will be the jurisdiction in which the Attorney-in-fact will be acting for you. This is normally the place in which the property of the Principal/Donor is located. It is advisable to appoint an Attorney-in-fact who resides in the jurisdiction where the property or assets that he or she will be managing are located. If you anticipate that your Attorney-in-fact will be acting in more than one jurisdiction, you may wish to make separate Powers of Attorney for each jurisdiction.
Incapacity – Incapacity means that a person is unable to understand information relevant to making a decision about the management of property, or is unable to understand and appreciate the foreseeable consequences of making (or not making) a decision about the management of property. If the Principal/Donor is incapacitated, he or she cannot create a valid Power of Attorney. Someone who is incapacitated cannot be appointed as an Attorney-in-fact.
Joint Attorneys-in-fact – If the Principal appoints more than one Attorney-in-fact, he or she will have to decide whether the Attorneys-in-fact will be Joint Attorneys-in-fact or Joint & Independent Attorneys-in-fact. Joint Attorneys-in-fact must act together. They must both agree before any action can be taken, and they must both take the same action at the same time. If one is absent, or if they do not agree, no action can be taken.
Joint & Independent Attorneys-in-fact – If the Principal appoints more than one Attorney-in-fact, he or she will have to decide whether the Attorneys-in-fact will be Joint Attorneys-in-fact or Joint & Independent Attorneys-in-fact. Joint & Independent Attorneys-in-fact can act together or individually. Either one can take an action without consulting the other. If one is absent, the other can still act.
Jurisdiction – A jurisdiction is a place that has its own laws. It is a territory with boundaries, such as a state or a province. For example, California is a jurisdiction in the United States, Ontario is a jurisdiction in Canada, Scotland is a jurisdiction in the United Kingdom, and Queensland is a jurisdiction in Australia.
Ordinary Power of Attorney – An Ordinary Power of Attorney is a Power of Attorney which becomes invalid upon either the mental incompetence or death of the Principal/Donor. An Ordinary Power of Attorney is only valid as long as the Principal/Donor is capable of acting for him or herself.
Principal – The Principal is the person who uses a Power of Attorney to grant another person (called the Attorney-in-fact) permission to manage his or her financial affairs. The Principal must be an adult. The Principal must also be capable of making his or her own decisions at the time the Power of Attorney is executed. This term is used in the United States.
Substitute Attorney-in-fact – See Alternate Attorney-in-fact.
General Information
A Power of Attorney is a document in which one person (the Principal or Donor) appoints another person (the Attorney-in-fact or, simply, the Attorney) to act for him or her. Unless the Principal places limits on the powers he or she grants, the Attorney-in-fact can essentially do anything that the Principal is able to do in regard to the Principal's finances and property.
There are a number of reasons why you might wish to give someone a Power of Attorney to conduct business on your behalf. If you are going to be out of the country for an extended period of time, for example, you may wish to have someone do your banking while you are gone. If you are approaching old age, you may wish to give a Power of Attorney to someone you trust so that he or she can manage your property for you.
When granting someone Power of Attorney, you do not have to give them complete control over your affairs. A “general” Power of Attorney allows the Attorney-in-fact to do anything you can do yourself, with a few exceptions—such as areas where you possess specialized skills that your Attorney-in-fact does not (for example, if you are a dentist, you cannot authorize your Attorney-in-fact to practice dentistry on your behalf). If there are things that you do not wish to authorize your Attorney-in-fact to do for you, you must include any such restrictions in your Power of Attorney.
The Attorney/Attorney-in-fact
The Attorney-in-fact is the person who the Principal appoints to act on his or her behalf. This person does not have to be a lawyer.
The qualifications for being an Attorney-in-fact are as follows:
- The Attorney-in-fact must be an adult.
- The Attorney-in-fact cannot be an un-discharged bankrupt.
- The Attorney-in-fact should not be an owner, operator, or employee of a nursing home or other extended care facility in which the Principal resides.
When appointing an Attorney-in-fact, the Principal should select someone whom he or she trusts completely. The Attorney-in-fact will have complete authority to manage the Principal’s legal and financial affairs (subject to any limitations noted in the Power of Attorney). The Principal should ensure that whomever he or she chooses to act as Attorney-in-fact has adequate financial management skills, as well as sufficient time to properly handle his or her affairs. The Attorney-in-fact must be available when required, be able to keep accurate financial records, and be able to objectively make decisions.
The responsibilities of the Attorney-in-fact are as follows:
- To act in the best interests of the Principal/Donor.
- To keep accurate records of dealings and transactions undertaken on behalf of the Principal/Donor.
- To act towards the Principal/Donor with the utmost good faith, and to avoid situations where there is a conflict of interest.
- To keep the Principal’s/Donor’s property and money separate from his or her own.
The Attorney-in-fact can be anyone who meets the qualifications, and who can carry out the responsibilities of the role. This means that you may appoint a relative to act as your Attorney-in-fact. The Attorney-in-fact may also be a beneficiary in your Will. As a Power of Attorney becomes invalid upon the death of the Principal, this does not create a conflict of interest.
Start, End, and Revocation of Power of Attorney
A Power of Attorney can start on a date specified in the document, or upon the occurrence of a specific event (such as the disability or mental incompetence of the Principal). If there is no date or event specified, a Power of Attorney starts immediately upon execution. (Note: Some jurisdictions do not allow Powers of Attorney that start on the occurrence of an event.)
When a Power of Attorney will end depends on the type of Power of Attorney it is. An ordinary Power of Attorney automatically ends when the Principal/Donor becomes mentally incapacitated or dies. A durable Power of Attorney remains valid if the Principal/Donor becomes mentally incapacitated, but ends automatically upon his or her death.
The Principal may revoke a Power of Attorney at any time, as long as he or she is mentally competent, by notifying the Attorney-in-fact (in writing) that the Power is revoked and destroying the original Power of Attorney. A person who is not mentally competent cannot revoke a durable Power of Attorney.
The Principal may also make a new Power of Attorney that states that the previous Power of Attorney is now revoked (the previous Attorney-in-fact must still be given written notice of the revocation). Third parties (e.g.: banks, people or organizations that have been dealing with the Attorney-in-fact) must also be notified of the revocation. If the Power of Attorney has been registered, then the revocation must also be registered.
In all other cases, a Power of Attorney remains in effect indefinitely, unless the document specifies an end date. This includes the failure by the Principal to inform the Attorney-in-fact that the Power of Attorney has been revoked (in which case, the Attorney-in-fact can legally continue to make decisions on behalf of the Principal).
Powers
A “general” Power of Attorney can allows the Attorney-in-fact to do anything you (the Principal) can do yourself, with a few exceptions—such as areas where you possess specialized skills that your Attorney-in-fact does not (for example, if you are a dentist, you cannot authorize your Attorney-in-fact to practice dentistry on your behalf). There may be some things that you do not wish your Attorney-in-fact to be able to do on your behalf. Any such restrictions must be specified in the Power of Attorney document.
While the Attorney-in-fact may transact business respecting the Principal’s property in all areas specified by the Power of Attorney document, the Attorney-in-fact is not, generally speaking, obligated to act for the Principal. However, the Attorney-in-fact may agree in writing to accept an obligation to take action when necessary. When the Attorney-in-fact does act on behalf of the Principal, he or she must act in the best interests of the Principal.
Unless otherwise specified, a Power of Attorney is effective as soon as it is executed. Unless the Power of Attorney specifies that it will not come into action until a given date, or until a specific event (such as the Principal becoming mentally incapacitated) occurs, the Attorney-in-fact may act on behalf of the Principal as soon as the Power of Attorney is executed, even while the Principal is still available and able to take care of his or her own finances. (Note: Some jurisdictions do not allow Powers of Attorney that come into effect upon the occurrence of a condition or event such as mental incapacity.)
Signing Details
The signing requirements for Powers of Attorney vary by jurisdiction, and may depend on what powers are given to the Attorney-in-fact. If you are giving your Attorney-in-fact the power to sell or otherwise dispose of your property, you will probably have to acknowledge your document before a Notary Public. Otherwise, witnesses should be legally sufficient.
However, many banks and other institutions have their own policies about signing requirements, and may refuse to accept documents that are not notarized, regardless of their legal sufficiency. In order to avoid bureaucratic hold-ups that may occur as a result of these policies, it may be best to acknowledge your document before a Notary Public, as well as having it witnessed.
In order for a Power of Attorney to be valid, it must be executed according to the legal requirements of the jurisdiction in which it will be used. You should sign the document with your regular check (cheque) signing signature. You should also initial each page of the document. The signing and the initialing of the pages must occur in the presence of your notary and/or witness(es).
After you have signed and initialed the document in front of your notary and/or witness(es), your notary and/or witness(es) must sign on the applicable page of the Power of Attorney, and should initial each page. They must do this in your presence.
There is no problem with having a Power of Attorney signed and witnessed in a different jurisdiction than the one where it will be used, as long as that jurisdiction where the document was signed is not in a different nation than the one in which is will be used. However, the witnessing requirements (i.e.: the number of witnesses required, whether or not notarization is needed) should be those of the place where the Power of Attorney will be used.
If your Power of Attorney will be used in a foreign nation, you may need to have it “authenticated” or “legalized.” This is a process whereby a government official (e.g.: the Secretary of State, the Foreign Office, or the Office of the Attorney General, depending on where you live) certifies that the signature of the authority (e.g.: the notary or solicitor) on your document is authentic and should be accepted in the foreign nation. For more information about document authentication and legalization, contact the local consulate/embassy of the foreign nation your document will be going to.
Other Considerations
The following are some questions that you may wish to consider when creating a Power of Attorney.
Do I have to pay my Attorney-in-fact?
Depending on the kind of relationship you have with the person who will be acting as your Attorney-in-fact, you will have to consider whether they should be paid for their services. You can stipulate in your document that your Attorney-in-fact will not receive any payment except the reimbursement of out-of-pocket expenses, or you can agree to pay your Attorney-in-fact a specified amount. If you prefer, you can authorize your Attorney-in-fact to pay him or herself a reasonable amount for acting for you.
Should I have my Attorney-in-fact prepare financial statements?
You can require your Attorney-in-fact to prepare periodical financial statements and send them to your accountant, lawyer or some other person you choose. This is a good deal of work, however, and most people do not require it of unpaid Attorneys-in-fact.
Note: Attorneys-in-fact should keep records of their actions.
Should I nominate my Attorney-in-fact as guardian or conservator?
If a court decides that you need a conservator of the person (guardian), one will be appointed for you. The conservator is responsible for your physical care, which under some circumstances includes making health care decisions for you. You may nominate someone to be your conservator if the need arises. The court will probably appoint the person you nominate unless the judge decides that would be contrary to your best interests.
Do I have to file or record my Power of Attorney with the County Clerk or the Land Titles Office?
Generally speaking, a Power of Attorney has to be recorded (filed) with the County Clerk or the Land Titles Office (depending on the jurisdiction) if it could affect real property (land or other real estate). For example, if the Attorney-in-fact is authorized to mortgage or sell the Principal's real estate, or to purchase real estate on behalf of the Principal, the Power of Attorney will probably have to be recorded at the appropriate office. Note: If this is the case, the document will probably need to be notarized.
Filling-out LawDepot’s Power of Attorney Form
Section 1 – Governing Law
When selecting the governing law, select the nation and state, province, territory, or country where the document will actually be used.
For example, if the Power of Attorney will be used to manage property in California, select “USA” as the nation, and “California” as the state.
Section 2 – Principal
This section is used to record information about the Principal (i.e.: the person who wants someone else to act for him or her). In most cases, this person filling out the form will be the Principal.
Section 3 – Attorney-in-fact
This section is used to record information about the Attorney(s)-in-fact (i.e.: the person or people who will be acting on behalf of the Principal).
Begin by selecting the number of Attorneys-in-fact you wish to appoint. You may appoint up to three.
If you only wish to appoint one Attorney-in-fact, you will be asked whether or not you wish to appoint an Alternate Attorney-in-fact. An Alternate Attorney-in-fact is someone who will take the place of the original Attorney-in-fact in the event that he or she is no longer willing or able to act as your Attorney-in-fact. If you wish to appoint an Alternate Attorney-in-fact, select “Yes,” and fill in the required information. If not, select “No,” and proceed to the next step.
If you appoint more than one Attorney-in-fact, you will have to specify whether you want the Attorneys-in-fact to be Joint Attorneys-in-fact or Joint & Independent Attorneys-in-fact. Joint Attorneys-in-fact must agree and act together. If one of the Attorneys-in-fact disagrees, no action can be taken under the Power of Attorney. Joint & Independent Attorneys-in-fact may act jointly or independently of one another.
Section 4 – Type of Power of Attorney
If you wish to create a Power of Attorney that becomes invalid upon the mental incapacity of the Principal, select “Ordinary.”
If you wish to create a Power of Attorney that remains valid even after the mental incapacity of the Principal, select “Durable.”
Both types of Power of Attorney become invalid if the Principal dies.
Section 5 – Attorney-in-fact Powers
This section allows you to specify what powers you wish to grant your Attorney-in-fact. If you wish to create a “general” Power of Attorney, which will grant your Attorney-in-fact authorization to act on your behalf in all financial and property-related matters, simply click the “Select All” button. If you click this button by mistake, you may click “Clear All” to undo it.
If you wish to limit your Attorney-in-fact to only performing certain actions, select only the individual actions you wish to authorize him or her to perform from the list.
If you wish to assign additional powers that are not listed, you may use the blank fields at the end of this section.
You cannot use LawDepot’s Power of Attorney form to transfer custody of your children, nor can you use it to give your Attorney-in-fact the power to make medical or other healthcare decisions for you or your children.
Section 6 – Do you wish to put restrictions on your attorney-in-fact?
If you wish to put restrictions on your Attorney-in-fact, select “Yes.” You may then select either (or both) of the options from the list. You may also add additional restrictions by using the blank fields in this section.
If you do not wish to put restrictions on your Attorney-in-fact, select “No,” and proceed to the next step.
Section 7 – Other Attorney-in-fact Issues
This section lets you clarify other issues that apply to your Attorney-in-fact, such as whether or not you are able to co-own property together, and whether or not your Attorney-in-fact will be paid for their work. To complete this section, simply choose “Yes” or “No” for each of the questions.
Section 8 – Termination of the Power of Attorney
If you would like to set a specific end time or event for the Power of Attorney, select “Yes,” and provide the details in the space provided.
If you do not wish to set a specific end time or event for the Power of Attorney, select “No,” and proceed to the next step.
Section 9 – Signing Details
This section is used to record the signing details necessary to make the Power of Attorney legally valid. As these requirements vary by jurisdiction, the questions and options that you see will depend on the jurisdiction that you have selected as the governing law.
To complete this section, simply provide your desired answer for each of the questions that you are presented with.
Purchasing a Power of Attorney License
Follow these steps to purchase a license to LawDepot’s Power of Attorney:
- Fill out as much of the Power of Attorney form as you wish. (See Filling-out LawDepot’s Power of Attorney Form for more information.)
- Click the “View Contract” button at the bottom of the page.
- If you are satisfied with the preview and wish to purchase a license, click the “Purchase License” button at the bottom of the page.
- Select the type of license that you want to purchase. (See Licensing Options for more information.)
- Select any additional services that you want to purchase.
- Enter your billing and credit card information.
- Click the “Send Order Using Our Secure Server” button at the bottom of the order page.
- You will see a confirmation page. Follow the instructions on the confirmation page to immediately use your document.
Note: Because all of LawDepot’s licensing options allow you to add, remove, or change answers for the duration of your license, you do not need to complete the Power of Attorney form before you purchase a license. You are able to purchase a license and fill in your answers later, at a time of your convenience.
Licensing Options
The following licensing options are available for LawDepot’s Power of Attorney:
Single Use License
A single use license allows you to change, edit, save, download, and print the Power of Attorney for a period of two weeks. Most customers will find that a single use license provides them with enough time and flexibility to complete and print a customized Power of Attorney form.
Multiple Use License
A multiple use license allows you to change, edit, save, download, and print the Power of Attorney for a period of one full year. This option provides you with greater flexibility and allows you to take more time to prepare your answers.
Required Questions
The following are the only questions that must be answered before you purchase a Power of Attorney License:
For the USA:
Governing Law State:
Principal State:
Signing Details State:
For Canada:
Governing Law Province/Territory:
Information of Donor Province/Territory:
Signing Details Province/Territory:
For the United Kingdom:
Governing Law Country:
Information of Donor Country:
Signing Details Country:
For Australia:
Governing Law State/Territory:
Additional Services
While purchasing a Power of Attorney license, you can also purchase the following additional services:
Accuracy Review
Our experienced staff reviews your submitted answers and selections for completeness, consistency, and spelling/grammatical errors. You will receive the reviewed document in HTML format within 2 business days after payment is received.
Legal Information Service
Our experienced staff will research an unlimited number of specific legal questions for the Power of Attorney for a period of two weeks.
