About Powers of Attorney

A power of attorney is a document signed by a person, called “the principal,” that gives authority to another person, called “the agent” or “attorney-in-fact,” to manage the principal’s health care decision-making and/or financial affairs. The power of attorney document is considered a less restrictive alternative to a guardianship.

There are three important considerations involved in the execution of a power of attorney:

1. To sign a document giving power of attorney to another person to act on the principal’s behalf, the principal must have the capacity to understand what s/he is doing.
2. The power of attorney can be written so that
   a. it becomes effective immediately; or
   b. it does not become effective until the person is disabled or loses the capacity to manage his/her own affairs. Usually, a written statement by the principal’s regularly attending physician is necessary to activate the power of attorney.
3. A durable power of attorney stays in effect after the principal becomes mentally disabled or incapacitated. If the document does not say this, it ends in the event of the principal becoming incapacitated. All power of attorney documents end at the time the principal dies.

In the power of attorney document, the principal can select specific powers to give to the attorney-in-fact, or the document can contain broad language giving all powers as an absolute owner of all the principal’s income and assets, and all powers to make health care decisions. The document can also be temporary or ongoing.

Because the attorney-in-fact can be given authority to exercise ultimate power over the principal’s health care decisions and financial resources, we urge anyone considering such a document to obtain legal counsel from a local attorney with experience in this area of practice. Ohana has no attorneys on staff, and generally has a policy against agreeing to serve in documents that have not been prepared by an attorney representing only the principal.