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Frequently Asked Questions About Powers of Attorney
Frequently Asked Questions About Powers of Attorney
What is a Power of Attorney?
A Power of Attorney is a legal document you use to allow another person to act for you. You create a legal relationship in which you are the principal and the person you appoint is the “attorney-in-fact” or agent. A Power of Attorney specifies the powers you give to your attorney-in-fact. The powers can be limited or broad. For example, if you are selling your house, but unable to attend the closing, you can give someone the power just to sign the deed in your absence. Most durable powers of attorney, however, give your attorney-in-fact the power to do almost anything you could do.
Banks, brokerage firms, and other financial institutions may not accept your Power of Attorney. They may require you to sign one of their own forms. Sometimes a lawyer can convince the institution to accept your Power of Attorney.
What does "durable" mean?
Many Power of Attorney documents are “durable.” The word "durable” means the Power of Attorney will still be effective even if the principal becomes mentally incapacitated. A Durable Power of Attorney must state that "this Power of Attorney shall not be affected by the subsequent disability or incompetence of the principal” or similar words. The powers you give to your attorney-in-fact will remain effective even though you are unable to give your agent instructions. Without these special words, your agent will not be able to use the Power of Attorney when you are unable to manage your own affairs, which is when most people want it to be used.
When does the Power of Attorney take effect?
The Power of Attorney is effective as soon as you sign it before two witnesses and have it notarized. You may give the Power of Attorney to your agent(s) and tell the person(s) not to use it unless you are unconscious or unable to act for yourself. However, the agent could use the Power of Attorney as soon as he or she receives it.
Some people may choose to use a “springing” Power of Attorney which does not take effect until a specific triggering event happens, such your incapacity. There are several problems with springing Powers of Attorney. First, the agent needs an affidavit showing the triggering event has occurred before the agent can use the Power of Attorney. Then, even though the law says banks and other institutions that accept the document with the affidavit are not liable, banks have been reluctant to recognize the agent’s power under a springing Power of Attorney. Finally, it isn't clear whether such a document would be accepted in other states.
If I give someone a Power of Attorney, does that mean I don't have control over my money any more?
No. When you give someone a Power of Attorney, you still have the right to control your money and property. However, you are giving your attorney-in-fact the ability to access your money. Your agent is not supposed to take or use your money without your permission, but there is a risk that a dishonest or unscrupulous agent might steal your money. It is therefore very important to choose an agent you trust.
Can the Power of Attorney be used by the agent to take my money or property without my permission?
There is a risk that the attorney-in-fact you choose to give your Power of Attorney may abuse the power by taking or spending your money without your knowledge or permission. Because the agent can use the Power of Attorney to access your bank account and sell your property, do not give your Power of Attorney to anyone you do not trust with your money or property. It can be very difficult to get back money or property taken by the agent, because the agent usually has no money left to return. The agent may also sell your property, or mortgage it, making it worth less.
If I think someone is using my Power of Attorney to steal from me, what can I do?
First, you should revoke the Power of Attorney.
Second, notify all banks or other financial institutions in which you have money that you have revoked the Power of Attorney
Third, you can go to the probate court (by yourself or through an attorney) and demand that the attorney-in-fact you suspect of stealing from you file an accounting showing how the money was spent. You will need to pay a filing fee and possibly pay the attorney-in-fact for the cost of preparing the accounting. The court will hold a hearing at which time you can challenge the information given in the accounting. Ultimately, if the court finds the agent took your money without your permission, you can sue the agent or possibly press criminal charges.
If you have not given the Power of Attorney to anyone, you can revoke it by destroying the document. The Power of Attorney cannot be used unless the attorney-in-fact has it or it (or a copy) has already been given to banks, financial institutions or others so that they think you want the agent to act on your behalf.
If the Power of Attorney has been given to the agent, an institution, or has already been recorded, you should execute a document revoking the Power of Attorney that is witnessed and acknowledged in the same manner as the first Power of Attorney. A sample document is included on this web site. Then you will need to give a copy of the Revocation to the banks or others so that they know the Power of Attorney is no longer good.
Connecticut law does not provide that a new Power of Attorney automatically revokes an old one. It is possible to have more than one agent with your Power of Attorney.
What is the difference between a “short form” and “long form” Power of Attorney?
The "statutory" or "short form" Power of Attorney is the common Power of Attorney form available on line and sold in Connecticut stores. The document lists only the powers given to the attorney-in-fact. It is “short” because it does not include the paragraph that describes each power in detail. IMPORTANT: in the statutory form, ALL the powers listed are included; you initial in the boxes only to DELETE certain powers. The statutory form Power of Attorney included in this web site links to the statute which describes the powers.
Some attorneys prefer to use a "long form" Power of Attorney because it contains the full description of the powers provided in the statute. Because the document contains the full description of the powers, it is easier to determine from the document whether or not it contains a particular power. If you execute a "statutory short form" Power of Attorney, it would be wise to keep a copy of the statute handy. You can read the statute here: Power of Attorney Statute.
I have a Power of Attorney I signed in another state. Can I use it in Connecticut?
Most Powers of Attorney signed in other states will be recognized in Connecticut. In general a Power of Attorney used to convey title to real estate, must be signed, dated, witnessed by two people, and "acknowledged" or notarized by a notary public or court official. (State laws govern who is authorized to take "acknowledgments.") The practical question is not whether the Power of Attorney is valid, but whether a financial institution will honor it. Also, if the document refers to statutes from another state, you may have to provide a copy of those statutes.
The law may be different in the state where you signed your Power of Attorney. Even if the document lists the same or similar powers, they may have a different meaning when used in Connecticut. Also, many states have different statutory protections for people signing a Power of Attorney.
Do I need to get a new Power of Attorney if I move to a different state?
When you move to a different state, you should always consult a local attorney to see whether your Power of Attorney will be effective the way you intended.
In some states, a Power of Attorney is not "durable" unless it is "recorded,” that is, filed with local government. In addition, there may be special rules about how it is revoked. Check with a local attorney.
Why do I need a Power of Attorney?
A Power of Attorney can be very helpful to you and your family. If you were unable to handle your own affairs as a result of illness, accident, or even absence, the Power of Attorney gives your agent the power to handle your affairs as you would handle them yourself. You might not be able to execute a Power of Attorney at a time when you are disabled due to an accident. If you are unable to handle your own affairs and have no Power of Attorney, your spouse or family may have to petition the Probate Court to appoint a Conservator for you. The Conservator would have to post bond, file an inventory, and prepare accountings. Sometimes this is unavoidable. However most people prefer to avoid the expense of probate court by naming their own agent and signing a Power of Attorney.
Where should I keep my Power of Attorney?
Your Power of Attorney is an important legal document. Keep it in a safe and secure place. You may wish to give a copy to your agent(s) or in a place where it can be easily found. Your attorney may keep a copy in case yours is lost. Make sure your family knows where to find your Power of Attorney, or whom to ask when it is needed.
Do I need to update my Power of Attorney if nothing has changed?
Some banks and financial institutions will not honor a Power of Attorney that is several years old because of the possibility that the Power of Attorney has been revoked. Therefore, it is prudent to re-execute your Power of Attorney every five years or so.
It is always a good idea to review your Power of Attorney periodically to make sure you still agree with your choices.
If you would like your Attorney-in-Fact to be able to make gifts on your behalf, including charitable gifts, you must add this gifting power to the Power of Attorney. Your Attorney-in-Fact may not make gifts on your behalf, unless the power is expressly granted. Other states may automatically include a "gifting power" in their statutory Power of Attorney, but Connecticut does not. This web site includes two suggested provisions you may want to use.