What is a Power of Attorney, and why would you need one? This is a very legitimate question, especially since most Kentuckians think we attorneys have enough power already. Power of Attorney is a legal document that gives another individual control over your legal matters. You (the “principal”) assign these rights to the individual (your “agent”) by signing a properly prepared document that defines the specific conditions in which your agent may act on your behalf.
A Power of Attorney structure may be “durable” or “non-durable.” A durable Power of Attorney immediately grants your agent the right to make financial and legal decisions for you until you die or the document is revoked. This arrangement is common for people who are no longer able to act in their best interests due to physical or mental limitations.
So if a family member has been declared mentally incapable of decision-making, perhaps due to Alzheimer’s or similar affliction that hurts one’s ability to make clear, rational decisions, the Power of Attorney allows the person they assign to make legal decisions for them.
If people know they are going to be sick, or want to be sure of the person making their decisions, they might set up something called, “Springing Powers of Attorney,” which are triggered by a specific event. Created beforehand, these arrangements (also durable) usually grant the agent legal powers should the principal be rendered incapable of responsibly managing his or her affairs. Another common durable structure is a Medical Power of Attorney. This grants the agent decision-making responsibility regarding continuation of life support and other medical care when the principal is in a coma or otherwise incapacitated. It is specific to medical decisions and typically is a separate document from a general, or legal, Power of Attorney.
The second kind of Power of Attorney, the non-durable one, limits the agent’s legal rights to a specific transaction or set of transactions. These are very common for people who are unable to attend real estate closings and need to designate someone to sign documents on their behalf. When creating a Power of Attorney relationship, it’s important to verify that the document used is valid in the state of your residence or of the transaction. (If you live in Kentucky, make sure the document is valid in Kentucky. If you’re buying property in Florida, make sure any non-durable assignment you make is valid in Florida.)
There are many forms available online, some of which may not be legally enforceable. It’s best to consult with a licensed attorney, and make sure the document meets both your requirements, and those of the state in question.
Complete the Power of Attorney form in its entirety, sign it, and have it notarized. We also recommend filing the document with the County Recorder’s office, and keeping certified copies for yourself and your agent should any legal questions arise later. The Power of Attorney is an extremely valuable legal tool that serves a wide range of Kentucky residents. The key is to identify your needs and make sure the document is written to meet them.
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