Power of Attorney Myths Busted!

By Senior Associate Heather McKaig

A Power of Attorney (POA) is one of the most important documents in an estate plan, but it’s also one of the most misunderstood. It allows you to name someone you trust to be your agent and handle your legal, financial, or medical decisions if you become unable to do so.

There are two types of POAs commonly used in estate planning. A Durable General POA is used to manage financial and legal matters and it stays in effect even if you become incapacitated. A Healthcare POA appoints someone to make medical decisions when you are unable to make or communicate your own decisions. Both documents are meant to provide support during your lifetime, especially in times of illness or incapacity.

One common misconception is that you can obtain power of attorney over a loved one or family member and become their agent. Power of attorney is given to the agent, the agent doesn’t go and get it. A person chooses their agent and appoints them by signing the POA. If your loved one is already incapacitated, they can’t sign the POA document to name you as their agent. To act as an agent for someone who is already incapacitated, a court proceeding appointing a guardian is required.

Another misconception is that an agent can use a POA to act for someone after they have died. A POA is only valid while the person who created it is alive. The moment that person dies, the agent’s authority ends. An agent can no longer access bank accounts, sell property, or make decisions on behalf of the deceased. Any attempt to act under a POA after death has no legal effect and any such action would create problems for the estate.

Once someone dies, any assets in their name alone become part of their probate estate and the Will, or a Trust if one exists, takes over. To access or manage the probate estate assets, someone must be appointed by the court as the Personal Representative of the estate (also called an Executor or Administrator). This person is usually named in a Will, or, if there’s no Will, appointed based on state law. 

This is why a POA is just one part of a complete estate plan. A POA is critical for handling things during life, but it doesn’t help after death. For that, you need: 

• A Will, to name your beneficiaries and executor, or 
• A Trust, if you want to avoid probate or add extra protection for your assets
• Updated beneficiary designations on accounts
• A plan for incapacity and medical decisions

A final misconception about POAs is that a power of “attorney” should be given to an attorney. Lawyers very rarely serve as agents under POAs. In this legal context, “attorney” means your representative or agent. Partners, family members, or other trusted people close to you are the best choices to act as your agent under a POA.

A POA is an essential tool for managing life’s unexpected turns. But it’s not designed to handle what comes next. That’s where your Will, Trust, and estate plan step in.

If you’re unsure whether your current plan covers everything it should—during life and after—we’re here to guide you through it.