If you’re like most Minnesotans who have bills to pay and a family to look out for, chances are you may have begun thinking about the importance of creating an estate plan. Such planning is essential to safeguard the future for not only yourself, but also the family members who depend on you. One critical component of any estate plan is a Minnesota power of attorney.
A power of attorney is a legal document that authorizes another person to act on your behalf. This can include many different tasks, small things such as signing checks to paying bills to big things like operating a business or making critical medical decisions. The legal relationship is created when a principal (you) decides how much power should be assigned to the attorney-in-fact (the person you are designating to act as your representative). The attorney-in-fact can be given the power to handle only a particular issue, thus creating a limited power of attorney, or to handle a wide array of legal matters, what’s known as a general power of attorney. You alone determine the extent of power assigned to that person and can craft whatever relationship you deem appropriate.
Given the degree of power that such documents convey over important aspects of your life, it’s essential that the principal select someone they can trust to serve as their representative. Anyone can serve as an attorney-in-fact, a spouse, an adult child, a distant relative or a good friend. No matter who you choose just be sure that you are comfortable and confident that they will act with your best interest at heart.
An important concept to explain when discussing a power of attorney is the notion of “durability.” A power of attorney is durable when it remains valid after the principal becomes incapacitated. If you want your power of attorney to be durable, it’s important that you consult with a Minnesota estate-planning attorney that understands such matters and can ensure it is written in the required manner. In Minnesota, powers of attorney that do not specifically identify themselves as durable end when the principal becomes incapacitated.
The following list contains a quick overview of three important varieties of powers of attorney:
- Limited Power of Attorney: Limited powers of attorney are those that are created for a specific purpose. A good example would be if you are selling a house and want to designate a friend or family member to sign papers on your behalf. The power of attorney is situation specific and does not continue in the event that you become incapacitated.
- Durable Power of Attorney: A durable power of attorney becomes effective when it is signed by the principal and will remain in effect until that person’s death. Durable powers of attorney remain effective even in the event of incapacity on the part of the principal, allowing the attorney-in-fact to continue carrying out their duties
- “Springing” Power of Attorney: A springing power of attorney is different than a durable power of attorney in its effective date. Rather than going into effect at the time of signing, springing powers of attorney go into effect only once a principal is no longer able to make decisions for themself. Such documents wait in limbo until incapacity makes them “spring” to life.
In Minnesota, a power of attorney can be created if certain requirements are met. First, Minnesota Statutes Section 523.01 requires that the document be in writing, that it is signed and dated by the principal before a notary public and that it is written in a way that clearly lays out what powers have been granted to the person acting as your representative. Minnesota law requires that extra hurdles be cleared in the event that you want your power of attorney to be durable.
An experienced Minnesota estate-planning lawyer can help walk you through the confusing process of drafting and implementing a power of attorney. For more information on estate planning in Minnesota, along with a variety of other topics, contact Joseph M. Flanders of Flanders Law Firm at (612) 360-4721.
Source: “Probate and Planning: A Guide to Planning for the Future,” published at AG.State.MN.US.
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