A “power of attorney” is a document that provides someone legal authority to act for another person. It permits you to appoint a representative to manage your affairs if you are unable to do so yourself. The individual who grants the power of attorney is known as the “principal,” and the person given the power is referred to as the “agent” or “attorney-in-fact.”
There are different types of power of attorney depending on the situation you need. Remember, the power of attorney does not take away the principal’s power to act but grants the agent the power to act for the principal.
Who May Create a Power of Attorney?
Depending on your state, you can search the local regulations regarding the power of attorney. To create a power of attorney, a person needs to meet the following requirements:
- Must have the mental capacity;
- Have to be at least 18 years of age;
- They must be able to comprehend the document; and
- Drafting on what powers are being granted to the agent and how they will make an impact.
When Does a Power of Attorney Go Into Effect?
A power of attorney goes into effect as soon as it is signed with all the proper paperwork. However, “springing” power of attorney grants the agent the power to act for the principal only after a certain event occurs, such as when the principal becomes incapacitated.
The power of attorney document must be detailed and specific regarding the power being granted. It must also include information on the limitations of power and the authority to act on behalf of the principal. The principal can authorize someone to confirm whether the event making the power effective has happened.
However, the last resort can be done for a judge or a doctor for the power of attorney if the person becomes sick or a judge to make the final decision.
Who Should I Choose to Be My Agent?
Before making this life decision to select an agent, you need to do some research to figure out how the process of the power of attorney operates. The decisions your agent will make on your behalf will be legally binding on you, meaning you will be responsible for future consequences. Therefore, you should carefully select a candidate that will meet your professional and personal standards. Keep in mind that you have the option to select more than one person if needed.
Will My Power of Attorney Expire?
There is a timeframe for the power of attorney. Once the power of attorney has been signed, it will generally remain so till either death or revocation. Depending on which state you reside in, it may vary. For instance, some states require a renewal process for the power of attorney, and some do not.
The law is constantly changing and you need to be aware of how it may impact your affairs dealing with the power of attorney. However, it is recommended to meet with your agent to discuss any modifications or issues you might need to resolve. But, some powers of attorney explicitly include termination dates to minimize the risk of former friends or spouses continuing to serve as agents.
How Does Power of Attorney Apply in Divorce Cases?
The power of attorney is not a one-size-fits-all document. They are subject to the wishes of the person granting the power and the individual state laws. A power of attorney is meant as a tool for individuals who cannot make any decisions for themselves. Divorce is a highly sensitive and personal matter.
There are different types of power of attorney, and you can determine which suits your situation. Although the principal grants the power of attorney to the agent, they are not as broad and have restrictions based on the principal’s needs. For instance, the special or limited power of attorney permits the agent to do only some things.
A power of attorney generally cannot grant an agent the power to make personal decisions for the principal. These restrictions are placed according to the law and the document itself. Some states have other restrictions regarding what the power of attorney agent can do. For instance, states do not allow the alteration of a will or a signing of a marriage license.
These are some examples that are considered personal affairs and cannot be legally granted to someone else to do on their behalf. Researching your local state and how it deals with power of attorney is important to know before you initiate this process. Either way, language is key, and using it clearly in the power of attorney to specify your exact needs will be useful.
Moreover, your agent will not have the authority to file for divorce on your behalf unless you are incapacitated. Your power of attorney must have the authority with language to do this. A durable power of attorney consists of specific language stating that you intend for your agent’s powers to continue if you become incapacitated. Other states utilize a springing power of attorney that does not go into effect unless or until you become incapacitated.
However, the court needs to determine you are incapacitated once your agent becomes your conservator. As your conservator, they might be able to file for divorce. Although, it is unlikely that a court would accept a divorce complaint or petition signed by your agent without a court hearing to either grant or deny such authority.
Keep in mind that authorizing someone as your agent does not necessarily mean that they can take care of all your matters. You, as the principal, can still make your personal decisions even once you sign a power of attorney.
Since divorce is a personal matter involving family disputes, it is advised to look into it yourself while seeking legal counsel. Furthermore, if your spouse is your agent and you are contemplating a divorce, it is recommended to
revoke this authorization. Remember that most states void your power of attorney from your spouse once the divorce is final because there is a chance that your spouse may not act in your best interest.
Can a Power of Attorney Sign Divorce Papers?
No, your agent cannot sign the divorce papers on your behalf. But, you can research the local laws regarding power of attorney and divorce to understand how each state or court operates.
Furthermore, depending on the type of power of attorney you attain and the authority granted, there may be some flexibility. Divorce is a personal matter, and most states respect this boundary in decision-making for you.
When Do I Need to Contact a Lawyer?
A power of attorney is an important legal document that allows you, as the principal, to permit an agent to act on your behalf. The successful power of attorney documents specify the legal authorities granted to the agent and the limitations as well.
Therefore, if you need assistance with this document and you are contemplating divorce, then you can consult with a local divorce attorney to assist you with the process.
