So you just found out that you are deploying to some remote location in a far off land with the prospects of early return bleak. How will your family function without you? Easy, go to the legal assistance office on post or to the OCJA and get a general power of attorney (POA) for your spouse. This is a common scenario for many soldiers. In fact, most servicemembers and dependents have at one time or another made a trip to the local installation legal assistance office to have a POA prepared and executed. But what is a POA and what are the consequences of granting a POA to another? This article will address these points to give you a better understanding of one of the more common legal documents servicemembers rely on on a daily basis.
A Power of Attorney (POA) is a very powerful legal document that you should use cautiously. Your POA gives your agent or attorney-in-fact (the person you appoint to carry out your wishes on your behalf) the authority to make decisions and act for you. Most often, you may use a POA when you cannot be present and you want someone to accomplish something for you. You may give a few powers or you may give many powers. For example, you may want your agent to sell your car while you are deployed. You also may want to have a POA for certain emergency situations.
But what types of POAs are there and which are appropriate for you? The answer depends on why you need one and whether another arrangement may work. Essentially, there are two types of POAs. A general power of attorney (GPOA) allows your agent to do almost everything you could do if you were present. As a result a GPOA has enormous potential for abuse. For example, the holder of a general POA can contractually bind you, open a bank account, empty your bank account, or sell your most cherished possessions. The disadvantage of a GPOA is the same as its advantage: your agent can do almost anything in your name. If the person who holds your GPOA cannot be trusted or turns against you when you are away, watch out! Your car could be sold or your bank account cleaned out when you return. Because of the dangers of a GPOA, you should limit its duration. When it expires, third parties cannot legally rely on it. This protects you from liability for your agent's acts after it ends.
A special power of attorney (SPOA) is normally better than a GPOA because it is limited and you narrow your agent's authority. If a general POA is more than you need (or are willing) to grant, but you still need to appoint another to act for you consider a SPOA. It allows you to limit your agent's authority to a specific matter. For example, you might limit your attorney-in-fact's authority to selling a specific car or to shipping your household goods.
For any POAs, the document must be signed by the grantor in front a notary public who will verify the signature. The post legal assistance office or the OCJA has a list of pre-prepared SPOAs for a specific matter. The following is a partial list the SPOAs.
CHILDREN AND MEDICAL CARE
Appoint a Guardian for a Child or Children
In Loco Parentis (General)
Emergency Medical Care
HOME AND PROPERTY
Clear Government Quarters
Lease Quarters and Settle Claims
Receive Household Goods
Ship Household Goods
Sign for Government Quarters
Lease of Grantor's Property
Manage Real Property
Purchase Real Property or Obtain Mortgage
Sell Real Property
Institute and Settle Court Claims
Deposit and Draw Checks
Use Credit Card
Purchase a Specific Motor Vehicle
Receive a Specific Motor Vehicle
Register Motor Vehicle
Sell a Specific Motor Vehicle
Ship a Specific Motor Vehicle
Transfer Title of Vehicle
Use, Operate, and Care of Motor Vehicle
Once you determine what kind of POA you should have, you must appoint an agent to carry out your wishes. It is imperative you give much thought to whom you choose. It must be someone you trust! A POA can be very useful if you have one when you need it. But it can be abused as well. For example, a husband who just separated from his wife might use the POA she gave him to clean out her individual bank account. A well-meaning older person might give a POA to a younger relative, only to discover that the relative squandered and spent the assets of the older person. Remember you are legally responsible for your agent's acts. Therefore, be very careful in selecting your agent. You may name your spouse, a relative, or a trusted friend. The person you designate must be at least 18 years old. In addition, you should make sure the person can intelligently handle your affairs, and can carry out your wishes in case he or she needs to negotiate a price or to persuade someone to even accept the POA. Finally, the person should be trustworthy, mature, and capable of understanding the great responsibility that goes with having a POA. Keep in mind that your agent will not bear the responsibility of their actions while acting under your POA - you will. Their actions legally bind you. A POA is, in a sense, a blank check.
When you no longer desire your appointed attorney-in-fact to continue in that position, revoke your POA. The best way to do that is to get the original back from your agent, but that might not be possible. You can also fill out a revocation form (at the Legal Assistance Office or at the OCJA) and deliver it to your agent and all the creditors, banks, companies, and individuals that your agent has dealt with or is likely to deal with on your behalf. You might also have to publish it in the newspaper or file it in court (if the POA was filed in court initially).
Once a POA is given to you as an agent, you must understand your responsibilities. First, you must realize the terms of the POA. The POA reflects the grantor or principal's wishes and describes your authority. Most POAs are tailored to each individual's situation. Be familiar with the terms of the POA because they determine what you may do or not do. Once you understand the wishes described, you as the agent must follow the grantor or principal's wishes. Just because you are the agent does not mean that you must immediately take charge of all the principal's affairs and do things your way. You should act only when and how authorized in the POA.
While using the document you will need several copies of the original POA to give to those you transact business with on behalf of the principal. Keep a list of those you give copies of the POA. When signing documents as an agent, always make clear that you are signing on behalf of the principal, such as "Mary Doe, as agent for John Doe." You have a special, fiduciary duty to manage the assets carefully and in the grantor's best interests. You must live up to the fiduciary standards imposed by law and can be sued for abusing the grantor's trust.
Although POAs are an efficient and convenient way to handle your personal affairs, they do have their limitations. Most POAs last from a definite start time for a specific period (for example one year). You may issue a POA that lasts an indefinite period of time, however, many businesses will not accept them. Many businesses and organizations such as banks and government agencies seldom accept a POA that lasts more than one or two years because of uncertainty that the agent is still authorized to act any longer. In fact, the OCJA will not issue a GPOA longer than a year and a SPOA longer than two years. Moreover, regardless of the length of the POA, third parties such as banks and businesses need not accept or acknowledge your POA; it is totally within their discretion to do so. Some businesses and government agencies (e.g., Internal Revenue Service) require you use their form POA. You should check with the business or agency where your agent will use your POA to be sure it would be accepted. Finally, a POA will not work for everything. There are some actions that cannot be accomplished by using a POA because these actions are so personal in nature they cannot be delegated to another. For example, a marriage ceremony or the execution of a will cannot be done by a POA.
The POA is one of the most powerful documents the post legal assistance office and the OCJA prepare for its clients on a regular basis. As a result, it is easy to lose sight of its significance in its strengths and its weaknesses. This article hopefully has cleared up some of the misconceptions and highlighted the potential power for abuse in the hands of the wrong person. If there are any specific questions, call the post Legal Assistance Office at (706) 791-7812 or the OCJA at (706) 787-4097.