An attorney is not legally required to prepare a power of attorney. However, you should know that powers of attorney are required to be:
- In writing;
- Signed by you in front of a notary public;
- Dated appropriately; and
- Clear on what powers are being granted.
CREATING A DURABLE POWER OF ATTORNEY
If you want to create a durable power of attorney, you must include a statement such as: “This power of attorney shall not be affected by incapacity or incompetence of the principal.” Minnesota Statutes section 523.23 contains Minnesota’s standard form, which enables you to choose whether or not you want the power of attorney to be durable.
In addition, an alternative form may be prepared by the Commissioner of Military Affairs for use by active service members. A legal power of attorney form can also be purchased at legal forms stores or drawn up on your own.
Some banks and brokerage companies have their own power of attorney forms. To ease your attorney-in-fact’s dealings with these institutions, you may need to prepare two (or more) durable powers of attorney, one using your own form and one or more using the forms provided by the institutions with which you do business.
WHAT HAPPENS IF I DON’T HAVE A DURABLE POWER OF ATTORNEY FOR FINANCES?
If you become incapacitated and you haven’t prepared a durable power of attorney for finances, you will probably need a court proceeding for conservatorship. Your spouse, closest relatives, or companion will have to ask a court for authority over at least some of your financial affairs. This can be a length and expensive process.
If you are married, your spouse has some authority over property you own together. He or she may pay bills from a joint bank account, for example. There are significant limits, however, on your spouse’s right to sell property owned by both of you. If your relatives go to court to have someone appointed to manage your financial affairs, they must ask a judge to rule that you cannot take care of your own affairs and request that the judge appoint a conservator. When this person is appointed, you may lose the right to control your own money and property.
WHEN DOES A POWER OF ATTORNEY END?
If you are mentally competent, you may revoke your original power of attorney at any time with a signed “revocation of power of attorney” document. A revocation is not effective, however, until the attorney-in-fact has received notice of the revocation. If you do not revoke it, a power of attorney ends at the stated expiration date (if you have named one), or at your death. If you want your attorney-in-fact to have authority to wind up your affairs after your death, use a will to name that person as personal representative.
Also, if you get a divorce and your spouse is your attorney-in-fact, your ex-spouse’s authority is automatically terminated. Finally, if there is no one to serve as attorney-in-fact, the power of attorney ends. To avoid this problem, you can name an alternative attorney-in-fact in your document.
