Estate Planning, Collaborative Family Law & Mediation

Powers of Attorney

What is a power of attorney?

A power of attorney is written permission for someone (the attorney-in-fact) to take care of property or money matters for you (the principle) in whatever way you want. Even though this person is called an “attorney-in-fact”, they do not have to be a lawyer.

With a power of attorney, you can still make your own decisions regarding your property and finances – you do not lose the right to control your property or money, the power of attorney simply allows the attorney-in-fact to also act for you. Any legal action done in your name by the attorney-in-fact is the same as if you had done the action yourself.

Typically, you give someone a power of attorney so that they can sign papers about property and money matters. These powers can be limited to a certain thing (like selling your cabin on the lake) or very broad (like managing all your money and property). It all depends on how the power of attorney is written. Generally a power of attorney lasts until you revoke it, you become incompetent, or you die.

Who should I pick as my attorney-in-fact?

Your attorney-in-fact should be someone you really trust; remember they will have control over your property and finances. You need to be confident that this person will act in your best interest. It helps if this person is detail-oriented since they are going to have to keep a record of everything they do for you.

You can always list more than one attorney-in-fact. If you do want to have more than one attorney-in-fact, you will have to specify if they must act unanimously or if there are certain things each may do without asking permission of the other. You can also specify a successor attorney-in-fact – someone to take over if your attorney-in-fact cannot perform their tasks.

How do I make a power of attorney?

A power of attorney must conform to Minnesota Statute (a sample can be found on the Minnesota Court’s web site); it must be in writing, dated and signed before a notary. If you want the power to end on a certain date, you must list the day, month and year the power will end in the writing.

While you don’t need a lawyer to do a power of attorney, it is a good idea to use one. Remember, no one monitors what an attorney-in-fact does and your attorney-in-fact could take advantage of you. A lawyer can help you put things in your power of attorney that limit the actions of the attorney-in-fact or make them have to show you what they do with your money and property.

Who can have a power of attorney?

The principle must be of legal age, mentally competent, and able to make decisions on your own. Mentally competent means that you are of “sound mind” – basically you don’t have a physical or mental illness that affects your ability to make rational decisions. Once a person is no longer mentally competent, it is too late for a power of attorney and you will have to the court grant a conservatorship or a guardianship.

What is a durable power of attorney?

A durable power of attorney is one that lasts (durable means lasting) beyond the principle’s incapacity. Generally, if a mental or physical illness renders the principle incompetent, a power of attorney becomes invalid. However if the power of attorney states that ” this power of attorney shall not be affected by incapacity of the principle” it would be a durable power of attorney. In the event the principle does become incapacitated, a durable power of attorney can only be revoked by a court-appointed conservator.

Can I stop a power of attorney?

A competent person can revoke (stop, take back) a power of attorney at any time. The revocation must be in writing, dated and signed in front of a notary. Copies of the revocation will have to be sent to all attorneys-in-fact listed on the power of attorney (including successor attorneys) and to any person, office, bank, or business the attorney-in-fact has had dealings with for you – if they don’t get the revocation, they will not know the power of attorney has been revoked and the attorney-in-fact can still do business in your name with them. You should also get the original power of attorney back from the attorney-in-fact.

If you have given your spouse a power of attorney, it will end if either of you start a divorce, separation, or annulment action.

How does a attorney-in-fact use a power of attorney?

When an attorney-in-fact acts for you, they sign their own name and then write “as attorney-in-fact-for [your name]“. If the attorney-in-fact is buying or selling property, you will have to have a signed original power of attorney filed with the county recorder’s office for the county where the property is located. If the power of attorney deals with money matters, you will need to file copies with your bank, stock broker, etc.

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