- November 27, 2019
- Kelvin Birk
- Estate Planning
For most people, the phrase “power of attorney” means very little. Even for those educated on the subject, it is easy to forget exactly who serves what role and why. Whether you are unfamiliar with the concept or simply need of a refresher, keep reading to learn what it means to be an agent under a power of attorney. At Birk Law Firm, we regularly draft powers of attorney as part of an estate planning package of documents. Also, we will draft only a power of attorney if that is all that you are needing at that time.
To start, it helps to understand what is being asked of an agent under a power of attorney. A person appointed to the role becomes a representative of the principal’s finances. In effect, they gain permission to step into the shoes of the principal and act on their behalf.
For those appointed under a limited power of attorney, though, the agent’s power is very specific. Typically, their ability to act on behalf of the principal is limited to the specific transaction or actions outlined in the limited power of attorney – executing a real estate deed on behalf of an out of town principal, for example. This kind of power of attorney offers stricter parameters for what the agent may do on behalf of the principal.
An agent under a general power of attorney has the authority to conduct all financial business on behalf of the principal subject to any restrictions that are enumerated in the document or by state law.
Regardless of which kind of power of attorney, agents must act as a fiduciary to the principal. This means the agent must operate in good faith, with the best interests of both the principal and their affairs in mind. When making any decisions, the agent is required to consider the choice the principal would make. Those who abuse their power in the role can be held liable for their actions.
Under a durable power of attorney, the benefits and responsibilities of being an agent under a power of attorney start as soon as the principal signs off. However, most principals do not expect an agent to use this tool unless they become incapacitated. For those appointed under a springing power of appointment, agents will not be able to act unless the principal is incapacitated. Principals should discuss expectations with the agent to ensure there is clarity on how to best carry out the principal’s wishes.
Should an agent need to act on behalf of the principal, it is important that the agent document everything they do. Documentation is the best way to answer any questions or challenges to the agent’s actions. Agents should keep their finances completely separate from the principal’s.
If you are feeling unsure about your duties as an agent under a power of attorney, be honest with the person who appointed you. Ask for clarification on your responsibilities and the expectations they have for you. You may even want to meet with an estate planning attorney for a more comprehensive discussion of your rights and options. By arming yourself with facts about your duties, you will more easily accomplish the principal’s goals and wishes. At Birk Law Firm, we will advise you on your responsibilities and draft the documents you need.