Power of Attorney
First of all I want to start off by saying, I am not an attorne. This article is from my own research, what I have learned from being an Indiana Notary and what I have learned from getting my P aralegal degree. You can look up any information to verify its contents.
Becoming a POA is a choice, a hard deiscion and not one to take lightly, but being a POA might be an even harder job. First thing to do when accepting the job as someone's POA is to know the type you are accepting, and understanding the roles you are taking on. It is not a one job fits all jobs and the importance of knowing this are very crucial. I will go over each one in detail to answer any questions you might have.
The different types are as follows: (You can click on one and get a free form to print)
- General Financial POA
- Durable Medical POA
- Limited POA
- Durable Financial POA
- Minor Child POA
- Revocation of POA
First things first
Indiana law has very specific requirements for a Power of Attorney to be valid. The member's signature must be witnessed and attested by a Notary Public. It is a legal document that allows you, refered to as the "Principal", to grant anothe person, referred to as the "Agent", the authority to act on your behalf in legal matters and transactios.
When deciding what typw of POA you need, the first consideration is how much authority or power your Agent really eeds. When deciding, consider who the Agent is and whether a limited POA, described below, is sufficient to accomplish your objective.
The difference between Durable and any other type of POA is that durable remains in effect even when the Principal becomes incapacitated. General and Limited become void when the Principal becomes incapacitated or incompitent. The person making a power of attorney must be of sound mind. The definitions of or what constitutes this mental capacity requirement are open to interpretation by Indiana courts. If you're helping someone make a POA and you're not sure if they meet the mental capacity requirement, you should consult a lawyer or have Dr. documentation.
General Financial POA
Permits the Agent to allow a trusted, responsible person to administer certain financial matters for his or her benefit. In the event the person making the POA is no longer able to make decisions for himself, this type of document will no longer be valid.
There are many uses for a general POA, like:
- Collecting debts
- Applying for government benefits
- Managing financial and business matters
- Buying, selling or making investments on your behalf
- Filing lawsuits on your behalf
A general POA can also be used when people don’t have the time, skills, or desire to handle financial matters. Unless you choose to revoke a general POA, it applies as long as you’re alive, or until you become incapacitated.
Durable Medical POA
Allows you to choose a person you trust to make health care decisions for you. One duty of your health care agent is to ensure that, in these circumstances, the medical care you receive lines up with the wishes you express in your Living Will. In the absence of an advance directive, doctors will turn to your health care agent to make these important decisions on your behalf.
If the Agent is incapacitated, your health care agent or Medical POA generally has the authority to:
- Consent or refuse consent to treatments (per your Living Will)
- Receive/review your medical and hospital records
- Sign any medical releases or health care documents
A Living Will is a document in which you can specify the medical treatments you wish to receive if you become incapacitated and can’t communicate.
This document helps health care workers understand when to proceed with certain treatments when you’re:
- In a coma
- Terminally ill or injured
- In the late stages of dementia
- Near the end of life
The terms of your directive are binding once you sign the document.
Other common names for this document include:
- Advance Directive
- Advance Medical Directive
- Advance Decision Form
- Personal Directive
If your interested in downloading and printing a living will, just click the orange link up there.
This type of POA allows the Principal to choose an Agent and grant them limited authority to act on their behalf. The agent’s ability to serve the principal is restricted by the stipulations established in the document. For instance, a limited power of attorney may allow the agent to deposit the principal’s checks while they’re away on vacation. The form typically terminates after the agent fulfills their obligations or when a predetermined expiration is reached. In every case, the form immediately terminates if the principal dies or loses their ability to make decisions.
Durable Financial POA
Permits the person granting the power to appoint a friend or relative he or she trusts to manage his or her financial and other interests as set forth in the document. This power continues even if the principal becomes incapacitated and is not able to make decisions for themselves. Typically the same as General POA, difference being, Durable continues on when the Agent becomes incompitent.
Again ,the definitions of or what constitutes this mental capacity requirement are open to interpretation by Indiana courts. If you're helping someone make a POA and you're not sure if they meet the mental capacity requirement, you should consult a lawyer or have Dr. documentation.
All the powers are the same as in a General Financial POA.
Minor Child POA
Allows a parent to appoint someone to be a guardian for their children in the event they are away for an extended period of time.
Revocation of POA
Terminates a POA that was entered into previously.
Under Indiana law, a POA can be revoked by the principal by executing a written document that specifically identifies the POA to be revoked and is signed by the principal. The AIF also has to be notified that the POA has been revoked. The most common type of written instrument revoking a POA is a new POA.
Revocation of power; record
Sec. 1. (a) Except as otherwise stated in the power of attorney, an executed power of attorney may be revoked only by a written instrument of revocation that:
(1) identifies the power of attorney revoked; and
(2) is signed by the principal.
(b) A revocation under subsection (a) is not effective unless the attorney in fact or other person has actual knowledge of the revocation.
(c) If an executed power of attorney was recorded under IC 30-5-3-3, the revocation of the power of attorney must:
(1) be recorded; and
(2) reference the book and page or instrument number where the instrument creating the power of attorney is recorded.
As added by P.L.149-1991, SEC.2.
Incapacity of principal
Sec. 3. (a) Except as otherwise stated in the power of attorney, a power of attorney is not terminated by the incapacity of the principal.
(b) The incapacity of a principal who has previously executed a power of attorney that terminates on the principal's incapacity does not revoke or terminate the power of attorney as to the attorney in fact or other person who, without actual knowledge of the incapacity of the principal, acts in good faith under the power. Unless otherwise invalid or unenforceable, an action taken under this subsection binds the principal and the principal's successors in interest.
As added by P.L.149-1991, SEC.2.
Death of principal; missing or missing in action; attorney in fact retains authority over anatomical gifts, autopsy, and disposition of
Sec. 4. (a) Except as provided in subsections (b) and (c), a power of attorney terminates on the death of the principal.
(b) The death of a principal who has executed a written power of attorney does not revoke or terminate the power of attorney as to the attorney in fact or other person who, without actual knowledge of the death of the principal, acts in good faith under the power. Unless otherwise invalid or unenforceable, an action taken under this subsection binds the principal and the principal's successors in interest.
(c) The death of a principal who executes a written power of attorney does not revoke or terminate the power of attorney as to authority granted under IC 30-5-5-16(b)(5) through IC 30-5-5-16(b)(7). An action taken under this subsection binds the principal and the principal's successors in interest, unless the action is inconsistent with a written directive executed by the principal before the principal's death.
(d) Notice from the United States Department of Defense of the death of a principal who has given a power of attorney is official notice of the death of the principal. A report or listing of the principal's being missing or missing in action does not do any of the following:
(1) Constitute and may not be interpreted as actual notice of the death of the principal.
(2) Terminate the power of attorney.
As added by P.L.149-1991, SEC.2. Amended by P.L.238-2005, SEC.53.
To Sum Things Up
This is the basics of the types of POA's in Indiana but as you can see, there are many stipulations with each and I stated before, one job doesn't fit all jobs. Always be sure to check State laws as each state has their own set of rules. One source to check out is USlegal for any questions you may have.
Also remember, the big difference is the verbiage. It can designate an amount of time, the powers granted, whether its Durable (stays in effect even when Principal becomes incompacitated) or General (no longer valid when Principal becomes incompacitated).
Please share if you know of anyone needing things explained or needs forms to print out and use. Thank You