How to Create a Power of Attorney (POA) Document

Helpful Highlights

• In all 50 states and all U.S. territories, self-drafted POAs are just as legal as those drafted by a lawyer.

• Though it may not be necessary, having a lawyer draft (or at least review) the POA ensures that all necessary elements are considered and covered.

• For links to available POA templates by state, see that state's Medical and Financial Power of Attorney (POA) Forms.

How to create a POA

Your loved one can either download or buy POA templates, or have a POA drafted by a lawyer.

Your loved one needs to determine which type of POA is required, either by searching online or discussing with a lawyer.

The most frequently searched and readily available types of POA are Financial and Medical (or Healthcare).

SELF-DRAFTED

If a template is downloaded or purchased, make sure it belongs to your loved one's state of residence (i.e., a New York POA cannot be used by a Pennsylvania resident). POA documents are very important, and your loved one should not assume that downloaded or purchased documents are correct.

Procedures and laws vary based on your loved one's residence. In many states, however, as long as your loved one follows the state's requirements, any POA they create is just as legal as one drafted by a lawyer.

In many states, it is mandatory to get your loved one's signature notarized. In some cases, the witness’s signature must also be notarized. In addition, some legal provisos are not generally applicable. For example, there is no standardized POA principal form.

LAWYER-DRAFTED

If your loved one wishes to start the POA process with a lawyer, they will need to locate an estate planning, family law, or elder care attorney in their state of residence (preferably in their local area) and request a consultation.

If the associated legal fees are more than your loved one can manage, there is the option of visiting a legal aid office. Alternatively, your loved one can go to the Legal Services Corporation website and communicate with a legal aide. Consultations are free for those who are eligible.

The most fundamental rule in POA creation

Best interests and powers that cannot be granted.

The fundamental rule governing the POA is that the agent is bound by law to act in your loved one's best interests. Therefore, the agent should be someone your loved one trusts implicitly.

There are also powers that your loved one cannot delegate and decisions the agent cannot make, such as:

• Making or changing their will

• Contracting marriage for them

• Casting a vote for them

• Making decisions for them after their death

• Changing or transferring POA to someone else (unless exceptions are explicitly detailed in the document for this occurrence)

These are powers that, even if an attempt is made to include them in the POA document, cannot be transferred from your loved one to someone else. Attempting to include them may render the entire POA void.