Are all powers of attorney the same?
The short answer is no. A power of attorney can grant a general power or a special power. It can be a durable power of attorney or not. You can also have a power of attorney solely for medical decisions.
What do all of these terms mean? A power of attorney is granted by one person, the principal, to another person, the agent usually called the “attorney in fact.” The attorney in fact has the powers to act on behalf of the principal and to do those things that the principal has granted him the power to do just as if the principal were doing them himself.
A general power of attorney grants the broadest powers. An attorney in fact with a general power of attorney can
do almost anything from selling the principal’s real estate to opening and closing bank accounts on behalf of the principal.
A special power of attorney is less broad and is restricted to the powers that are specifically mentioned in the special power of attorney. An example would be granting someone the power to transfer title to an automobile or to cash a check from an insurance settlement. The attorney in fact is not allowed to act on behalf of the principal except within the limits set out in the special power of attorney.
A power of attorney for medical purposes gives the attorney in fact the right to make medical decisions on behalf of the principal at a time when the principal is not capable of making them himself.
Any power of attorney can be made “durable.” A power of attorney ends if the principal becomes incompetent. A durable power of attorney will remain in effect even if the principal becomes incompetent. From this discussion, you can see that the principal must be competent at the time he grants a power of attorney otherwise, the power of attorney is no good.
A power of attorney ends on the death of the principal whether the power of attorney is durable or not.
The attorney in fact must exercise his powers with the upmost care because he is a fiduciary and is potentially liable if he does not take good care of the principal’s property under his control.