Power of Attorney Forms

What is a power of attorney?
A power of attorney is your legal permission for another adult to act on your behalf. The permission can be granted for a specific, limited purpose and period of time or for much broader purposes (such as handling all of your financial affairs) and an unquantified period of time (such as until your death). The first type is called a “conventional power of attorney,” and the second type is called a “durable power of attorney.”
 

When would I want to give someone my power of attorney?
If you are going on an extended vacation and there are financial transactions that will need to be completed during that time (for instance, buying or selling a house, closing a mortgage, or buying or selling stock), it might be convenient or necessary to have an “attorney in fact” who can complete those transactions for you. Similar reasoning applies if you know you will be away on military duty. Another important use for a power of attorney is if you become incapacitated. Establishing a power of attorney in advance allows you to plan for who will be making decisions that affect your legal, financial and/or medical well-being.
 

Who can I name as my attorney in fact?
The person who holds your power of attorney is called your attorney in fact. Your “attorney in fact,” in effect, steps into your shoes for the decisions you authorize that person to make. The attorney in fact must be an adult and must have the legal ability to enter into a contract. The person you choose can be (but does not have to be) a relative of yours. The person you name as attorney in fact should be someone you trust. You should also have that person’s agreement to act as your attorney in fact before naming them, since acting as an attorney in fact is voluntary and no one can be required to serve as your attorney in fact.
 

The person who agrees to act as your attorney in fact will owe you a fiduciary duty, which means that your best interests must always be placed first while acting as your attorney in fact. The attorney in fact does not have to be compensated, but, especially if the duties are complicated or time-consuming, you may wish to consider compensation.
 

What is a durable power of attorney?
A durable power of attorney is designed for use in case you become incapacitated (such as through illness or by accident) and are no longer able to make decisions for yourself. The regular durable power of attorney becomes effective when it is signed and notarized. A “springing” durable power of attorney becomes effective on the day in the future that you become incapacitated. If you never become incapacitated, it does not become effective and your attorney in fact exercises no authority over you or your assets. Both types of durable power of attorney remain valid and in effect until you specifically revoke or cancel the power of attorney or until you die (and your attorney in fact can still act on your behalf until actual notice of your death is received). Both types of durable power of attorney allow your attorney in fact to deal with the financial and property matters you specify in the document. You may not want your attorney in fact to have authority over certain assets, such as a mutual fund you want to pass by will, or your house. And remember, a power of attorney is not a substitute for a will. You still should have a will for the disposition of your property after you die.
 

What is a durable power of attorney for health care?
The Nevada Legislature has enacted a specific law dealing with this type of power of attorney. Nevada Revised Statutes § 449.830 provides a specific form for durable power of attorney for health care decisions. The form allows you to give your attorney in fact broad authority to make health care decisions for you, including consent or refusal or withdrawal of consent for any care related to your physical or mental condition. The form also allows you to choose if you want life-prolonging treatments to be used if you are in a coma or have a terminal condition, or if you want artificial nutrition of hydration to be withheld. You are also allowed to designate alternate attorneys in fact. The statute containing the form is available at most public libraries. The form and the instructions it contains should be copied and followed exactly.
 

Where can I get power of attorney forms?
Your public library or county law library may have books with forms and instructions on how to prepare your own form. Office supply stores and financial institutions also may have forms available. You should be aware that a preprinted form normally is intended for a specific purpose and that, if your purpose is more complex, you may wish to consult an lawyer. As always you should discuss your purpose and the cost of preparing your power of attorney with the lawyer up-front.
 

Does a power of attorney have to be in writing and be notarized?
Yes. It must be in writing and your signature must be notarized to be effective. The original should be kept in a safe place. In the case of a “springing power of attorney” which becomes effective upon your incapacity in the future, the document must also be kept in a place that is accessible to the attorney in fact. For example, the attorney in fact may have no way of retrieving the document if it is in your safety deposit box.
 

How should my attorney in fact sign documents of my behalf?
The signature should have your name followed by the name of the attorney in fact. For example: John Doe by Mary Roe, his attorney in fact.
 

How can I revoke or cancel a power of attorney?
You can revoke a power of attorney by notifying your attorney in fact that you are revoking the power of attorney. You can use a simple one page form that states that you are revoking the power of attorney. The form should be signed by you and your signature should be notarized. If the power of attorney involves your incapacity, you may want to have witnesses also sign the revocation document. You should then deliver the revocation notice to the attorney in fact and deliver copies to any person or business to which the attorney in fact may have presented the power of attorney. Because Nevada law requires all power of attorney forms that allow the sale of real estate to be recorded (or if you recorded it for any other reason), you should also record the notice of revocation with your county recorder.
 

How can I find an attorney with experience in Power of Attorney matters?
You can contact the State Bar of Nevada’s Lawyer Referral & Information Service at 702-382-0504 (toll free in Nevada at 800-789-5747) or look in the Yellow Pages of your telephone directory. You can also ask friends and/or relatives if they can recommend a good lawyer. The State Bar can tell you whether or not an attorney is licensed in Nevada and in good standing.