WHAT IS A POWER OF ATTORNEY?
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Power of Attorney Defined
You’ve probably heard the term power of attorney many times but I think there is a lot of confusion as to what exactly is a power of attorney. Basically, a “power of attorney” is your legal permission to allow another authorized adult to act on your behalf in very specific matters and that person will be called your “attorney in fact.” You can grant your “attorney in fact” permission for an extremely specific and limited purposes and for a very limited period of time or you can make your permission much broader and for an extended period of time. A power of attorney can relate to financial affairs, to your health care decisions, to educational decisions, or to any specific life decisions that you wish to dedicate to another adult for any reason. Therefore. they must be drafted carefully and entered into with great caution. You are basically giving your right to make certain decisions to someone else in certain situations.
Types of Powers of Attorney/ Durable power of attorney
At this point you’re probably wondering what is the difference between a power of attorney and durable power of attorney. Most people are familiar with a durable power of attorney because you’re often asked by healthcare providers if you have one or requested to sign one before a major medical procedure. A durable power of attorney is specifically designed for use in case you become medically incapacitated and you are no longer able to make decisions on your own behalf. The standard durable power of attorney only becomes effective when it is signed and notarized and you become incapacitated. If you are fortunate and never become incapacitated, a durable power of attorney never takes affect and the person that you appointed as your attorney in fact never has legal authority to make decisions over you or your assets.
Both types of powers of attorney remain valid and in effect until you specifically revoke them, cancel the power of attorney, or indicate in the power of attorney itself the date they are no longer in force and affect. Although durable powers of attorney are usually known as health care powers of attorney, a durable power of attorney can also be used to assign an attorney in fact to deal with financial and property matters and other legal matters on your behalf. You may appoint an attorney in fact in a durable power of attorney over specific assets such as possibly a specific mutual fund that you wish to pass in a certain way or a piece of property.
It is important to note that a power of attorney is not a substitute for a will. You cannot appoint your attorney in fact to distribute assets in case of your passing in a manner that is contrary to any written will that you have previously executed.
Reasons for powers of attorney
The reasons for power of attorney are as varied as life’s circumstances. However there are some common general circumstances that people tend to execute powers of attorney. For instant, if you are planning on being on an extended vacation or out of the country and there are specific financial transactions that will need to go forward such as selling a house or closing on a mortgage or selling certain stock you made need a power of attorney. Those may be situations where it is convenient or even necessary to appoint your attorney in fact to act on your behalf for those matters in your absence.
This can also apply if you are being called away to military duty and there are transactions that will need to occur in your absence. Often times a power of attorney is needed if you will become incapacitated such as undergoing a surgery. By preparing a power of attorney prior to undergoing the procedure this allows you to plan for who will be making decisions for you in the event that you are incapacitated for some period of time.
Persons to be Appointed Attorney in Fact
The question arises as to who you can appoint as your attorney in fact. The person that you appoint as your attorney in fact basically steps into your shoes and makes decisions that you would make on your own. Your attorney in fact must be an adult and have the legal ability to enter into a contract. Because the requirements are not very stringent, it is really a guttural choice on your part to choose a person that you trust implicitly to conduct your affairs. They do not have to be a relative or a spouse or even a professional. It should be a person of competence that you trust. This may go without saying, but after many years of practice we have seen this occur. It is extremely important that you have the person’s agreement to act on your behalf as your attorney in fact before you name them as this is a voluntary position and no one can force them to make decisions for you.
The individual that agrees to act as your attorney in fact will be responsible and will owe what is called a fiduciary responsibility to you. That means the attorney in fact is required and legally bound to act in your best interests while acting as your attorney in fact. Although you do not have to pay someone to be your attorney in fact, if the duties are complex and require a great deal of time, it would be wise to consider compensation for the individual that you choose to be your attorney in fact.
Nevada requirements for Durable Health-Care Power of Attorney
If you are looking for a form for your durable health-care power of attorney in Nevada, there are certain required elements in Nevada pursuant to Nevada Revised Statute 449.830. The statute provides that the form must be written and notarized. If it is not notarized it must be witnessed by two adults that you personally know. However, the witnesses cannot be a healthcare provider, an employee of the healthcare provider, an operator of a healthcare facility, an employee of a healthcare facility, or your actual attorney in fact. In addition, one of the witnesses must be a person who is not related to you by blood, marriage, or adoption. Finally, to the witness’s knowledge, they must not be eligible to take part of your estate upon your death.
You can also revoke your power of attorney at any time. You can simply use a one page form that states you are revoking all prior powers of attorney. This form should be signed by you and notarized.
How do I prepare a power of attorney?
At The One Lawyer.com we are happy to assist our clients in the preparation of powers of attorney for any reason at a very reasonable cost. You can also locate forms for a power of attorney at a public library, online, or at the Clark County Law Library. In addition, office supply stores often have form books available. However it is important to note that you need to be careful with pre-printed forms because they are often intended for a specific purpose and if your purpose is more complex or you seek to have your power of attorney more narrow, you may wish to consult counsel to make sure that you do not give away excessive decision making ability to your attorney in fact. At TheOneLawyer.com we prepare power of attorney‘s on a flat fee basis. Please contact us to discuss your needs and we can provide you a low cost to prepare your legal documents
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