Powers of Attorney

A power of attorney (POA) or letter of attorney is a written authorization to represent or act on anther’s behalf in private affairs, business, or some other legal matter, sometimes against the wishes of the other. The person authorizing the other to act is the principal, grantor, or donor (of the power).  The one authorized to act is the agent or, in some common law jurisdictions, the attorney-in-fact (attorney for short).  Formerly, a power referred to an instrument under seal while a letter was an instrument under hand, but today both are signed by the grantor, and therefore there is no difference between the two.

A power of attorney may be: special (also called limited), general, or temporarily limited.  A special power of attorney is one that is limited to a specified act or type of act.  A general power of attorney is one that allows the agent to make all personal and business decisions.  A temporarily limited power of attorney is one with a limited time frame.

Durable Power of Attorney

Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes “incapacitated,” meaning unable to grant such a power, because of physical injury or mental illness, for example, unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated.  This type of power of attorney is called “power of attorney with durable provisions” in the United States or “enduring power of attorney” elsewhere. In effect, under a durable power of attorney (DPA), the authority of the attorney-in-fact to act and/or make decisions on behalf of the grantor continues until the grantor’s death.

Health Care Power of Attorney

In some jurisdictions, a durable power of attorney can also be a “health care power of attorney.”  This particular affidavit gives the attorney-in-fact the authority to make health-care decisions for the grantor, up to and including terminating care and life support.  The grantor can typically modify or restrict the powers of the agent to make end-of-life decisions.  In many jurisdictions a health care power of attorney is also referred to as a “health care proxy” and, as such, the two terms are sometimes used interchangeably.

 

Advance Health Care Directive

Related to the health care power of attorney is a separate document known as an advance health care directive, also called a “living will”.  A living will is a written statement of a person’s health care and medical wishes but does not appoint another person to make health care decisions.  Advance health care directives that are legal in all states are increasingly available online, including the MyDirectives advance health care directive in the United States.