The odds are favorable that you will be either the Principal or the Agent in a power of attorney, or POA, at some point in your life. A POA can be an extremely useful legal tool when drafted and used properly. Unfortunately, people frequently execute a POA without really understanding the power and authority they are bestowing on the Agent. For example, exactly how does an agent use a power of attorney? Furthermore, are there limits to the authority granted to an Agent under a POA?
A power of attorney is a legal agreement made between the Principal and the designated Agent. The Principal grants the Agent the legal authority to act on behalf of the Principal under a POA. The extent of the authority a Principal grants to an Agent is up to the Principal; however, there are also some powers that cannot be granted by law under the POA.
When an Agent accepts the position a special legal relationship is created. The Agent takes on a fiduciary duty to the Principal, meaning that the Agent must act in the Principal’s best interests and must be very careful handling assets owned by the Principal.
A power of attorney can be either general or limited. When a general POA is created it gives the Agent broad, sweeping powers to act on behalf of the Principal in almost any situation. If a limited POA is created, on the other hand, the Agent only has the authority specifically enumerated in the POA agreement. If the POA is a “durable” POA is means that the power granted to the Agent survives the incapacity of the Principal.
Using a power of attorney is typically fairly easy. The Principal will execute a written power of attorney document naming you as the Agent. Usually, a POA document is executed in front of a notary public. The Agent is then given an original copy of the document. As the Agent, you should carry that document (or a copy) with you at all times because you may not always know when you will need to use it. When you are called on to act on behalf of the Principal, you simply provide the other party with a copy of the POA authority. Under most circumstances, your authority will be accepted and you will be able to move forward as the Agent for the Principal.
If you have specific questions or concerns about a Texas power of attorney, consult with an experienced estate planning attorney.
Stephen A. Mendel, Estate Planning Attorney
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