What is Special Power Of Attorney
Special power of attorney is a written authorization that grants an agent (also called an attorney in fact) the authority to act on behalf of the principal (the person granting this authority) under certain, specified circumstances.
Special power of attorney is also called a limited power of attorney.
BREAKING DOWN Special Power Of Attorney
A power of attorney is a signed agreement that authorizes an individual to act on another’s behalf in a limited or broad capacity. The person who initiates a power of attorney, whether in oral or written form, is known as the grantor or principal. The authorized individual named in the agreement is referred to as the attorney in fact or agent. A power of attorney broadly falls into two categories: general and special.
A general power of attorney grants the agent authority to make all personal and business decisions on behalf of the principal. An individual who will be out of the country for a year may give an agent extensive powers to carry out transactions such as personal and business financial transactions, bill payments, life insurance purchases, charitable donations, real estate management and the filing of tax returns.
Unlike the broader general power of attorney, a special power of attorney gives the agent the authority to act on the principal's behalf, but only under certain, specified circumstances. Authority could be granted to allow the agent to, for example, buy or sell a home, withdraw money from a bank account, cash checks or run a business. Because this type of power of attorney is limited to the act(s) designated in the document, it is especially important that the principal is very clear about the powers she wishes to grant the agent. An individual whose physical or mental health is compromised may opt for a special power of attorney, giving the agent limited power to only buy, sell or manage real estate and other property on her behalf. The principal may create more than one special power of attorney, naming a different individual in each one.
The special power of attorney is often used when one cannot handle certain affairs due to other commitments or for health-related reasons.
Under the common law, a power of attorney becomes ineffective if its principal dies or becomes incapacitated, meaning the principal is unable to grant such a power due to physical injury or mental illness. However, a special power of attorney can be made durable. A durable power of attorney is one that authorizes the agent to continue acting on behalf of the principal even after the principal becomes incapacitated, for instance, due to a head injury or Alzheimer’s disease. In effect, under a durable power of attorney, the authority of the agent to act and make decisions on behalf of the principal continues until the principal's death. For an individual who does not already have a durable power of attorney in place and does not have the capacity to execute a special power of attorney, the court will impose a conservatorship or a guardianship to act on his or her behalf.