The premise behind a power of attorney (POA) is simple: It's a document that authorizes one person – called the agent or attorney-in-fact – to take action on behalf of another person, referred to as the principal. when she is unable to act on her own behalf. This might be the case if she's disabled or away on military service.
The circumstances under which a POA is created are not always so straightforward, however, when the principal is out of the country.
Types of POAs
There are different types of POAs: a general POA, a durable POA, a springing POA, and a special POA.
A general POA gives the agent the power to do anything on behalf of the principal. A durable POA remains valid even if you become incapacitated and unable to handle your own affairs. If you don’t indicate that you want your POA to be durable, it will automatically end if you later become incapacitated.
Although most types of POAs are effective as soon as they're signed, a springing POA "springs" into action only when the principal becomes incapacitated, or some other specified event occurs.
A special POA, which is also sometimes called a limited power of attorney, imposes restrictions on what the agent can do, or it might specify a particular action to be taken on behalf of the principal. For example, the principal might authorize the agent to sell a house.
The agent doesn't have to be a lawyer. The principal can authorize any competent individual, such as a spouse, child or parent, to make decisions on his behalf.
A medical POA grants the agent the authority to make medical decisions on the principal's behalf in the event that the principal is unable to make or communicate decisions about his medical care. You can have more than one POA, such as separate financial and medical POAs, authorizing one person to make financial decisions and another to make medical decisions.
Both general and limited POAs can be limited in different ways, such as by duration – it might be valid for a certain time period – or by circumstance. For example, it might only be valid in the event of physical disability or mental incapacity.
The POA can be canceled by the principal at any time provided that he still has the legal capacity to do so. A power of attorney automatically ceases when the principal dies.
How to Get a POA
In most cases, all the principal needs to do to create a valid POA is properly complete and sign the POA document in front of a witness and have it notarized. The principal must be competent to give her authority for the POA to be effective. In other words, she must know and understand what types of decisions need to be made and what she's authorizing. A POA can be given only by the principal. Nobody can create one against her wishes.
Read More: Can POA Supercede Spousal Rights?
When the Principal Is Abroad
A POA executed abroad can be used in the United States as long as it is recognized as valid and abides by relevant state law. When the POA is executed, it must be signed at a "notarization appointment" in the presence of a notarizing official at a local United States embassy or consulate.
To avoid potential legal issues and time delays, it makes sense to execute the POA before the principal goes abroad, if possible.
A POA executed abroad can be used in the United States as long as it's recognized as valid and abides with relevant state laws. The principal must sign the POA at a "notarization appointment" at a local United States embassy or consulate.
- U.S. Department of State: Draw Up Powers of Attorney
- WebMD: Advance Directives
- Vaish Associates Advocates: Power of Attorneys Executed Out of India - Requirement of Notarization & Evidentiary Value Before Courts of India
- Pennsylvania General Assembly: Chapter 56 Powers of Attorney
- Duhaime's Law Dictionary: Springing Power of Attorney Definition
- Debbie Baum: Notarization of Power of Attorney Outside of the United States
- Mark Feigenbaum: Foreign Powers of Attorney & Cross-Border Estate Planning
Claire is a qualified lawyer and specialized in family law before becoming a full-time writer. She has written for many digital publications, including The Washington Post, Forbes, Vice and HealthCentral.