Power of Attorney

- An Authorization To Act on the Behalf of Another -

This page was last updated on Thursday, January 16, 2014

A power of attorney is a writing where a person (the principal) appoints another to be their agent to do specified things. So the principal is a person who has controlling authority and the agent does specified acts for the principal. In some jurisdictions, the person who appoints another to act for them is the grantor. In turn, the grantor authorizes another person to act as their agent.

An agent cannot use a power of attorney to commit an illegal act and so the agent is solely responsible for their own act(s). Only authorized persons may certify a power of attorney. The reason is that the law requires notaries and other officials to keep records that authenticate the signature or signatures for this kind of document. Before a power of attorney can become a legal document, the grantor must sign it but some states and other jurisdictions may require more than this.

The law may require the notary to inspect the official identification cards of the signatories and then witness their signing of the document before notarizing the authorization. Nearly every power of attorney must have an expiration clause. This clause specifies an event, date, or other condition that causes it to expire, for an example, the granter has died. (A Durable Power of Attorney is beyond the scope of this essay.)

A person may give their agent the right to withdraw money for a legitimate purpose without giving the person an ownership right in the account. That person is the attorney-in-fact. This person does not have to be a lawyer and they do not own the account. Instead, they use the account for the owner’s best interests. That means that the attorney-in-fact cannot use the money for their own purposes and they are liable for any losses that they had caused. Either party may end the agreement at anytime by giving the other person notice and do not forget to tell the bank. Otherwise, that could be fraud.

However, one exception is the enduring power of attorney. This is a legal authorization to act on the behalf of someone in a legal or business matter. An enduring power of attorney does not end when the principal becomes incapable of managing their own affairs. So the maker may write it as a document that takes affect after they have signed it or after a triggering event had occurred.

Another type of enduring power of attorney has no effect until the occurrence of a specified event or the inability to decide about matters affecting their estate. Accordingly, the grantor can change or revoke an enduring power of attorney anytime while mentally capable to carry out their affairs. So revoking the previous authorization in a superceding document should do this. Remember this, an agent cannot do things that are illegal or anything that the grantor does not want. So if the agent decides to sell or take your property, they have committed an illegal act. Conversion is a tort (a private or civil wrong) that deprives a person of their property without authorization or justification. See Barron's.

Edward Steven Nunes

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Fakery, Forgery, and Fraud.