Power of Attorney: What is It and Do You Need One?

By Jedidiah McKeehan
attorneyknoxville@gmail.com

Do you know someone who has elderly parents who aren’t able to get out to the grocery store or bank by themselves anymore?  Do you know someone who is getting to the point where they are starting to get forgetful or can get confused on occasion and need assistance in balancing checkbooks and managing accounts?  If you do know someone like this, or feel that it may apply to you, you may want to explore the option of obtaining a Power of Attorney.

 

What is a Power of Attorney?

A Power of Attorney means that someone has the power to be your “Attorney-in-Fact.”  They will be able to make decisions on your behalf that only you yourself would be able to make, such as access your bank accounts, buy and sell property and file tax returns.  The list of duties that someone possessing a Power of Attorney is able to perform in the state of Tennessee can be found at Tennessee Code Annotated Section 34-6-109.

 

Who Do You Pick to be a Power of Attorney for You?

When someone becomes your Power of Attorney, the list of things they can now do on your behalf are both important and intimate.  Because of this, it is of utmost importance that who you choose as your Power of Attorney is someone who is trustworthy.  If you do not trust them, you certainly don’t want them signing your name on investment documents or accessing your safe deposit box.  Typical choices for Power of Attorneys are adult children, often those who assist in the care for elderly parents.  It is wise to discuss the choice for a Power of Attorney with close family members so that no one is taken unaware by the choice.  This can prevent hurt feelings down the road that can lead to dissension and resent among family members.

 

How Do You Go About Making the Power of Attorney?

A good place to start is by meeting with an attorney who is familiar with drafting Power of Attorney documents.  There are places online to obtain Power of Attorney forms, but those can often be problematic if you have any questions or there are specific things that you want the Power of Attorney document to say.  For example, what if the individual making the Power of Attorney (also called the “principal” or “grantor”) becomes incapacitated through Alzheimer’s?  Is the Power of Attorney still effective?  The answer is no, it’s not.  However, if instead of a regular Power of Attorney, you had drafted a Durable Power of Attorney pursuant to Tennessee Code Annotated Sections 34-6-102 and -105, then the Power of Attorney would still be effective, and at the time when the principal most needs someone to act on their behalf and in their interest.

 

If You’re Considering a Power of Attorney, Is There Danger in Waiting to Draft One?

Yes, there is a very real danger in waiting.  A Power of Attorney cannot be created if the principal lacks the mental capacity to do so.  Once they have lost the ability to make rational and reasonable decisions, they cannot form an effective legal document that can allow banks, insurance companies or other businesses to let someone act on their behalf.

 

What if I Want Someone to Do Some Things For Me, But Not All Things?

There is also the possibility of drafting a Limited Power of Attorney.  In this type of document you can dictate specifically what someone can and cannot do on your behalf.  If you want to give someone the power to sign all the documentation on your behalf to sell one piece of property, you can most certainly do that.  If you are looking at forming a Limited Power of Attorney, I highly recommend contacting an attorney-at-law (not to be confused with an “Attorney in Fact”), to assist you in including the proper language to create a document with the proper language.

 

Can I Revoke a Power of Attorney?

Yes, you most absolutely can.  The principal can execute a Revocation of Power of Attorney that revokes the Power of Attorney powers, appoints a new Power of Attorney, or alters the powers of the Power of Attorney.  It is important to collect and destroy the original Power of Attorney documents as well as notify institutions relying on the original Power of Attorney, so that unauthorized actions aren’t taken at the principal’s expense.

 

The Knoxville Focus would like to welcome new columnist Jedidiah McKeehan. Jedidiah represents clients in criminal, family, business and estate matters at the Knoxville law firm Tarpy, Cox, Fleishman & Leveille, PLLC. He has been practicing law since 2007 and can be reached at attorneyknoxville@gmail.com. For more information about Jedidiah and how he can assist you, visit www.attorney-knoxville.com.

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