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Power of Attorney

A power of attorney is your written authorization that another person is able to act in your name in certain types of transactions, and under certain circumstances or with limitations you establish ahead of time. Powers of attorney are effective immediately upon their execution. A power of attorney can always be revoked, provided the revocation is in writing and is distributed to anyone who had received the initial document.

For example, if you were planning to leave the country on business, you could execute a power of attorney to allow your partner (or someone else) to sign checks or take other particular actions on your behalf. This assumes that this person does not already have authority to do so. It would be unnecessary to execute a power of attorney allowing your partner to write checks on a joint account because that person’s name is already on that account.

Power of attorney can also be very useful if you anticipate serious long term medical treatment during which you might not be able to attend to your affairs. You can establish an expiration date for the power of attorney.

A standard, or nondurable, power of attorney document will automatically be rendered invalid if you become “incompetent,” for example, if you sustain a head injury or have a stroke and are in a coma. The conventional power of attorney operates under the assumption that you have the capacity to take back that permission if you are dissatisfied or simply change your mind. If you lose the capacity to make that decision, the law will terminate a non-durable power of attorney.

Many couples, therefore, execute durable powers of attorney, because they are not rendered invalid because of a loss of competence. A durable power of attorney permits the holder of the power, called an “attorney-in-fact”, to continue making critical financial and legal decisions on the other’s behalf when they are least able to do so on their own. By being able to sign most documents (but not a will) on your behalf, your attorney-in-fact can keep your rent and bills paid, sell your assets as needed to pay for your medical care, or even contract for nursing home care.

Minnesota law establishes a lengthy list of powers which an attorney-in-fact will be permitted to exercise on your behalf unless you specifically say your designate does not have that power. Minnesota law also provides remedies for you if your attorney-in-fact abuses the power you granted and attempts to take advantage of you while you’re vulnerable. Absent legal documentation that you have appointed a legal representative, your biological relatives could be permitted to act on your behalf, rather than your domestic partner.

This information is not intended to constitute or replace legal advice: always consult your attorney before drafting or signing documents which affect your legal rights. If you need a referral to a GLBT-friendly attorney in your area, please contact the OutFront Minnesota Legal Program at 612-822-0127x7663 or legal@outfront.org.

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