Part of establishing an effective estate plan for yourself may be to employ the knowledge, skills, and expertise of others to assist with important decision making.
Jump ahead to these sections:
- What Is Joint Power of Attorney?
- Are There Different Types of Joint Power of Attorney?
- Can a Joint Power of Attorney Have Limitations?
- Who Is Responsible for Making Decisions?
- Why Do People Appoint a Joint Power of Attorney?
- How Does Having a Joint Power of Attorney Work?
- What Are the Problems Associated With a Joint Power of Attorney?
- What Are the Possible Benefits of Having a Joint Power of Attorney?
- How Do You Appoint a Joint Power of Attorney?
For example, in attempting to buy or sell a piece of real property, you may want the knowledge of a local real estate agent to help you choose the right property. When considering market investments, you may want to rely on the insights of experienced investment brokers to choose the most prudent investments.
Similarly, if you become physically or mentally incapacitated or disabled, you may want a close family member, who knows you well, to have input on your medical care and treatment. One way to have other people with specialized skills make legal decisions for you and act on your behalf is to create a joint power of attorney.
What Is Joint Power of Attorney?
To start, joint power of attorney (also called “dual power of attorney”) is a legal document that enables a person (called a “principal”) to authorize other persons (called “agents” or “attorneys-in-fact”) to act on behalf of the principal with regard to financial or health care decisions.
Similarly, a document in which a principal authorizes just one person to act on their behalf is called a power of attorney. When the principal authorizes more than one agent to act, it is called a “joint power of attorney.” This can be a useful document to have if there’s more than one person you’d like to be responsible for your decision in case of emergency.
Are There Different Types of Joint Power of Attorney?
With that in mind, are there different types of joint power of attorney? Generally, a joint power of attorney is used for two purposes:
- Financial management / investments
- Health care decisions
A principal can create a joint power of attorney to authorize agents to manage their financial affairs, make investment decisions, or even make medical or health care decisions on their behalf.
Which area the agents are authorized to make decisions about depends on what powers the principal grants to the agents within the document. In a joint power of attorney, the principal can authorize multiple agents to be responsible for just financial decisions, just medical decisions, or both.
The scope of the powers granted in the document can be:
- Limited (Special)
To understand how these differ, let’s break them down in greater detail.
General power of attorney
In a general power of attorney, the agent is afforded broad power to make general decisions about finances, running a business, buying or selling real property, and general legal decisions that you would normally make for yourself, such as whether to enter into a contract or when to pay your bills.
Because giving broad control of general financial and legal matters to another person can be risky–even if your agents are family members–general powers of attorney are often used for brief time periods, such as when you are temporarily incapacitated or unavailable to handle your day to day financial affairs, perhaps because of a temporary illness or due to travel outside of the country.
Limited power of attorney
In a limited (special) power of attorney, the principal authorizes the agents to act under limited circumstances, for a very specific purpose, or to complete a specific task. For example, a principal might grant agents only the power to cash a royalty check or enter a contract for the purchase of real property.
Although agents may be authorized to act to accomplish these tasks, they may not assume other general or specific duties, like making stock market investments or paying income taxes. With a limited (special) power of attorney, once the agent performs the specific task that they have been authorized to do, the power of attorney expires. If the principal wants the agents to perform additional tasks, the principal will have to create another power of attorney.
Can a Joint Power of Attorney Have Limitations?
A principle also can name when a joint (or joint and several) power of attorney is effective. A joint power of attorney can be:
There are different situations when you’d use each of these types.
In a durable power of attorney, unless the principal states otherwise in the document, the agents are granted the authority to act as soon as the document is signed. It becomes effective immediately. The agents have the authority to act on the principal’s behalf, even if the principal becomes incapacitated.
So, if you suffer a mental illness and cannot make financial decisions, your agents will be able to continue managing your financial affairs during your incapacity. A principal may rescind or terminate a durable power of attorney at any time, provided they are competent to do so. If a principle does not rescind a durable power of attorney
A non-durable power of attorney works just the opposite way. Powers afforded under a non-durable power of attorney will automatically cease or expire if the principal becomes incapacitated.
A springing power of attorney may become effective when a non-durable power of attorney terminates due to incapacity. A spring power of attorney remains ineffective while the principal has capacity, but when the principal does become incapacitated, the this power of attorney “springs” into effect and functions during the principal’s incapacity.
Who Is Responsible for Making Decisions?
Joint powers of attorney also can be distinguished by the way in which the agents may make decisions. The powers may be either of the following:
- Joint: In a joint power of attorney, all of the agents are equally responsible for all the decisions. So, if there are two agents authorized to make investment decisions in a joint power of attorney, both of the agents must agree on the investment decision in order to act. One agent cannot act without the input of the other agent.
- Joint and several: with this power of attorney, the agents may make decisions together or act individually. For example, if two agents are authorized to make healthcare decisions and one of the agents is not available when a decision has to be made, the other agent may resolve the issue individually.
Why Do People Appoint a Joint Power of Attorney?
People appoint a joint power of attorney for different reasons, depending on:
What decisions they want their agents to make
If someone wants others to manage their financial affairs and make their health care decisions for them, they may choose to appoint joint agents based on their expertise in those areas.
For example, you may want your sibling to make your medical health care decisions if or when you become incapacitated because they love you and know your preferences regarding general health issues. Still, your sibling may not know the first thing about managing finances.
Instead, you may want your accountant to handle those tasks. But you may not feel comfortable with your accountant making your medical decisions on your behalf. So, appointing a joint and several power of attorney to your sibling and accountant may be the prudent thing to do.
The complexity of the decisions
Another good reason to appoint a joint power of attorney may be to have multiple agents handling multiple tasks for complex estates. For example, it may not be necessary to have more than one agent who can cash or deposit your paycheck every month.
If you own and operate a family business, it may be effective and efficient to appoint multiple agents, each of whom may handle different aspects of a complex business.
Ensure input and accountability
Finally, a good reason to have a joint power of attorney is so that one agent is not granted sole authority or discretion of your finances or health care.
Having multiple agents offer input on decisions may help to assure that good decisions are made. It also guarantees that each agent has oversight of the actions of the other agents and that each agent is accountable for their decisions.
How Does Having a Joint Power of Attorney Work?
A joint power of attorney is just a legal document that authorizes an agent to act on your behalf when making financial or legal decisions that you normally have to make for yourself.
For example, a bank will not allow someone who is not named on your bank account to withdraw funds from your account. Normally, only you (or another account holder) may access or withdraw funds in your account. If you are not able to do this, by presenting a joint power of attorney that you have signed, family members or friends may be able to perform this task for you.
The joint power of attorney serves as a legal permission slip–it authorizes third-party service providers (like banks) to conduct financial or legal business with the agent as if they were conducting your business with you.
What Are the Problems Associated With a Joint Power of Attorney?
One problem associated with a joint power of attorney may be the delay in the decision making process that sometimes occurs by having to have multiple people make a decision. The more agents you appoint, the less likely the agents are going to be to agree on a decision and, when they disagree, the longer they are going to take to resolve the issue.
If they have to petition the court to resolve the issue, the delay could be extensive. So, with a joint power of attorney, the agents may not be able to act immediately.
Another problem often occurs when a parent grants a joint power of attorney to multiple children who cannot agree. Often, a parent will authorize multiple children to make decisions because they want to be fair and not have any of the children feel disfavored or “left out.”
However, when siblings have to make important financial or medical decisions for a parent, opinions are likely to differ, tensions may rise, and family disharmony may result. One way to avoid this is to appoint individual children to specific tasks or decisions for which they are responsible and authorized to act. Children may still disagree but they will be less likely to delay the time in which they can act..
What Are the Possible Benefits of Having a Joint Power of Attorney?
As expressed in this article, there are many benefits to be derived from using a joint power of attorney. For example:
- Skills: Principals can appoint multiple agents with specific skills or expertise in specific areas to help make good decisions.
- Insight: Multiple agents can provide individual experience, insight, and advice, which will provide more informed decision-making.
- Accountability: Each agent can provide oversight of other agents and hold them accountable for their decisions and actions.
How Do You Appoint a Joint Power of Attorney?
To appoint a joint power of attorney, you should know the rules. The rules are usually state specific, which means that the rules in every state are not the same. Individual states may have specific rules that differ from the rules in other states.
For example, some states may require that all signatures on a joint power of attorney be notarized, while others may not. You may want to consult with an attorney in your state. If you cannot afford an attorney, you can always find joint power of attorney forms online that are supposed to conform to any specific rules that may be relevant in your state.
Notwithstanding specific variation in rules among states, joint powers of attorney generally include the same elements and can be created relatively easily. To create a joint power of attorney, keep these points in mind:
Have a typed or written document: Of course, your agents, who are trying to conduct your financial business or make your medical decisions, will need proof of their legal authority to act on your behalf.
Be sure of when your joint power of attorney is effective: As described above, there are different kinds of joint power of attorney that become (or ineffective) at different times and under different circumstances. Be sure your joint power of attorney describes the kind of power that you want to grant.
Identify yourself and your agents: Within your joint power of attorney, identify yourself and the agents who you want to authorize to act on your behalf.
Delegate powers to your agents: Describe what you are authorizing your agents to do. Be specific.
Sign (and notarize) the document: Sign your joint power attorney, include any witness signatures and notarizations (if required in your state).
- File or record: Some states or counties may require that you file or record your joint power of attorney. If you are not sure what your state requires, consult with an attorney to make sure your power of attorney is validly executed and recorded.
There Are a Variety of Joint Powers of Attorney that May Be Right for You
A power of attorney can be a useful financial planning tool when the need arises. A joint power of attorney may be even more useful, depending on your financial and medical circumstances, the complexity of your needs, and the reasons why you need an attorney-in-fact or agent to act on your behalf.
There are a variety of kinds of joint powers of attorney that can be defined and detailed to satisfy just about any scenario in which you become incapacitated or unavailable to conduct legal business.