What Happens if a Person Doesn't Have a Power of Attorney?

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Powers of attorney are very useful legal documents
Powers of attorney are very useful legal documents (Image: young lawyer image by Alexey Stiop from Fotolia.com)

A power of attorney is a legal document that allows you to grant someone else the right to make decisions on your behalf that they would otherwise not be allowed to do. Powers of attorney are often used in estate planning and end-of-life preparations to ensure your desires are met when you are no longer able to express them. If you do not have a power of attorney in place, the person you want to make decisions for you may not be able to. Power of attorney laws differ from state to state, so talk to an estate planning attorney in your state if you need legal advice.

Financial Powers

A power of attorney is often used to allow someone else to make financial decisions on your behalf if you become incapacitated or ill. Depending on the state in which you live, the law determines who gets to make financial decisions in the event you all are incapacitated. Typically, your spouse or family members get to make these decisions for you. However, some states may require a court to first appoint a guardian or trustee to take care of your finances if you do not already have a power of attorney.

Health Care Powers

Powers of attorney are also commonly used by people who want to ensure that their wishes regarding health care decisions are carried out in the event they are incapacitated. Granting someone durable power of attorney for health care allows you to choose who makes health care decisions on your behalf. If you have not granted such a power of attorney, state law also dictates who gets to make these decisions, whether or not it was your desire for that to happen.

Power Over Others

If you are in the position where you want to make decisions on someone else's behalf, you may not be able to do so unless that person has granted you power of attorney. For example, if you have a parent with health problems, you cannot make decisions on behalf of of your parent unless you are first granted power of attorney. If your parents lose the ability to make decisions, you may or may not have the right to make those decisions on the parents' behalf. Even if you do have the right, you may first have to go to court and get an order to enforce your rights.

Powers After Death

Powers of attorney only last for as long as the principal is alive. As soon as the principal dies, anyone who has been granted power of attorney immediately loses the right to make decisions on the principal's behalf. So, even if you are granted power of attorney, you cannot, for example, decide how to use the decedent's money after he dies. These decisions can only be made through a representative appointed either through the decedents last will and testament or named by the probate court.

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