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A
power of attorney (POA) or letter
of attorney in common law systems or mandate
in civil law systems is an authorization to act on someone
else's behalf in a legal or business matter. The person
authorizing the other to act is the principal,
granter or donor (of the power), and
the one authorized to act is the agent, the
attorney-in-fact, or in many
Common Law jurisdictions, simply the attorney.
Click
HERE for the California Advance Health Care Directive
(pdf form)
Click
HERE for the California Uniform Form Power of Attorney
(pdf form)
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.) 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 (but any such power ends when the grantor
dies). This type of power of attorney is called a durable
power of attorney.
In some jurisdictions, a durable power of attorney can
also be a "Health Care Power of Attorney",
an advance directive which empowers the attorney-in-fact
(proxy) to make health-care decisions for the grantor,
up to and including terminating care and "pulling
the plug" on machines keeping a critically and
terminally ill patient alive. Health care decisions
include the power to consent, refuse consent or withdraw
consent to any type of medical care, treatment, service
or procedure. 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.
New York State has enacted a Health Care Proxy law that
requires a separate document be prepared appointing
one as your health care agent.
People with mental illness may prepare Psychiatric Advance
Directives (PADs in some U.S. states) or Ulysses
contracts as they are called in Canada. Ulysses
contracts are powers of attorney that enable a patient
to dictate preferences for care before becoming incapacitated
by recurring mental illness. Although they are not used
very often, there is speculation in some of the academic
literature as to whether or not these advance directives
are empowering for people with mental illness (Journal
of Ethics in Mental Health 2006-1).
In some U.S. states and other jurisdictions it is possible
to grant a springing power of attorney; i.e.,
a power that only takes effect after the incapacity
of the grantor or some other definite future act or
circumstance. After such incapacitation the power is
identical to a durable power, but cannot be invoked
before the incapacity. This may be used to allow a spouse
or family member to manage the grantor's affairs in
case illness or injury makes the grantor unable to act,
while retaining the power for without an attorney-in-fact
before the incapacity occurs. If a springing
power is used, care should be given to specifying exactly
how and when the power springs into effect.
As the result of privacy legislation in the U.S., medical
doctors will often not reveal information relating to
capacity of the principal unless the power of attorney
specifically authorizes them to do so.
Unless the power of attorney has been made irrevocable
(by its own terms or by some legal principle), the grantor
may revoke the power of attorney by telling the attorney-in-fact
it is revoked; however, if the principal does not inform
third parties and it is reasonable for the third parties
to rely upon the power of attorney being in force, the
principal may still be bound by the acts of the agent,
though the agent may also be liable for such unauthorized
acts.
Many standardized forms are available for various kinds
of powers of attorney, and many organizations provide
them for their clients, customers, patients, employees,
or members. In some states statutory power of attorney
forms are available. Some individuals have used powers
of attorney to unscrupulously waste or steal the assets
of vulnerable individuals such as the elderly (see elder
abuse).
Robert's Rules of Order notes that proxy voting involves
granting a power of attorney. The term "proxy"
refers to both the power of attorney itself and the
person to whom it is granted.
At
Penney and Associates, we are committed to providing
the best possible service so your law related needs
are handled with the utmost professionalism.
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