In most circumstances, adults have the legal power to make their own decisions. One of the most important decisions a competent adult can make is to select someone else to take over this power when necessary. The usual way to give another person authority to make decisions for you is to execute a durable power of attorney. If the power of attorney meets certain requirements, it may continue in effect even though you later become incapacitated. Such a power of attorney is "durable." Failure to designate another person to make decisions after your incapacity may mean that court proceedings are required.

Some powers of attorney are restricted to financial matters, while others give authority to make medical decisions. The latter may sometimes be referred to as "health care powers of attorney," "medical powers of attorney," "medical directives," or similar terms, depending on the jurisdiction.

The signer of a power of attorney is usually referred to as the "principal." The person to whom the power is granted is called the "agent" or "attorney-in-fact."

Every state and US territory permits some form of "durable" power of attorney. Specific requirements vary among jurisdictions, but may include particular language or witness requirements. In some states, all powers of attorney are presumed to be "durable."

While every state specifically permits durable powers of attorney for financial purposes, the rules for health care powers of attorney vary considerably. In South Carolina durable powers of attorney and health care powers of attorney are recognized and permitted by law.

A properly drafted power of attorney may preclude the need for court action, and may save substantial legal expense and invasion of privacy in the event of incapacity. On the other hand, in most jurisdictions powers of attorney are not reviewed or regulated by any agency. Consequently, the potential for abuse by agents under powers of attorney is great.

When acting under a power of attorney, the agent will ordinarily sign documents by referring to the power. The authority of the agent is limited to those items listed in the power of attorney. The agent must be prepared to fully account to the signer of the power of attorney (or the Court, if an action is commenced), even if no accounting is requested. Other than receiving a fee, the agent is not permitted to benefit personally from the power of attorney, except to the extent specifically included in the document.

Elder Law attorneys usually have particular experience in drafting and enforcing powers of attorney. The agent under a power of attorney may also need legal advice or representation. Sometimes, interpretation or enforcement of a power of attorney (or recovery against an agent who has misbehaved) may require court proceedings, and Elder Law attorneys are familiar with such actions. In choosing an attorney to prepare, defend or enforce a power of attorney, be sure to ask whether she has experience in such matters.

The information in this article was prepared as general and supplemental information and may not be applicable to the reader's particular legal needs or circumstances. It should not be relied upon as a substitute for legal or other professional services. For such services consult a competent professional advisor.

M. Robin Morris, R.N., L.L.C., Attorney At Law, 164 Waccamaw Medical Park Court, Conway, S.C. 29528; Tel. 843-347-7998. Member of National Academy of Elder Law Attorneys. ©1998