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¶ What is A Suitable Framework For A Power of Attorney?
A Power of Attorney should deal with the following issues, most of which are only capable of being addressed using a custom-made Power of Attorney.
| Identification of Principal | |
| Identification of the principal, being the legal entity or legal entities recording the terms of appointment of their agent or agents in the Power of Attorney | |
| May b | |
| Identification of Principal | |
| Identification of the principal, being the legal entity or legal entities recording the terms of appointment of their agent or agents in the Power of Attorney | |
| May b |
| Identification of Principal | Confirming that the Power of Attorney is binding upon the principal upon being signed by the principal, or otherwise (see the discussion of 'becoming effective' in respect of springing Powers of Attorney for more insight) about the concept at stake. |
| Inception | Confirming that the Power of Attorney is binding upon the principal upon being signed by the principal, or otherwise (see the discussion of 'becoming effective' in respect of springing Powers of Attorney for more insight) about the concept at stake. |
| Identification of Agents | Identification of the agents to be appointed under the Power of Attorney (including identification of any individual conditions applicable in respect of the appointment of an agent). |
| Acceptance of Appointment | Definition of the the method by which any agent, successor agent or sub-agent may accept appointment (explaining for example whether they must sign and deliver a copy of the signed Power of Attorney to the principal before their appointment can be effective.) |
| Terms of Authority | Identification of when agents may commence to exercise authority to perform tasks they are authorized to perform under the Power of Attorney (perhaps also identifying when agents may not perform those tasks, during the lifespan of the Power of Attorney). |
| Termination | Identifying when the Power of Attorney terminates. |
| Governing Jurisdiction | Confirming the state from which laws are to be taken to be the laws under which the principal asserts to create the Power of Attorney etc. |
| Transactions & Tasks | Providing insight about the tasks that agents may perform. |
| Successor Agents | Identifying successor agents for potential appointment (and any protector in California, Texas, Illinois or Pennsylvania). |
| Sub-Agents | Explaining the authority of agents or successor agents with respect to appointing sub-agents. |
| Class Conditions | Defining of any class conditions operating in respect of any particular class of officeholders. |
| Directions | Recording any directions that agents must follow. |
| Limitations | Recording any limitations with respect to matters including for example, the ability of agents tp perform tasks. |
| Other Provisions | Addressing mechanical issues, like revocation of earlier Powers of Attorney, overlapping tasks, ineligible agents becoming eligible etc. |
¶ Basics In A Power of Attorney
A Power of Attorney typically discloses a number of key features, many of which are not dealt with in government forms.
Issues that are dealt with in government forms include:
¶ The Principal (I.e. The Legal Entity Creating The Power of Attorney)
Identification of the principal, being the legal entity or legal entities recording the terms of appointment of an agent or agents
- when the principal intends that the Power of Attorney will become binding upon themselves or less commonly, the agent
- the legal entity or legal entities to be appointed as agents
- how an agent may accept appointment
- the term of the Power of Attorney (time of commencement and termination)
- within the term of the Power of Attorney:-
- the term of appointment and terms of authority of agents appointed under the Power of Attorney
- the tasks authorized to be performed by the agents during their term of appointment and upon the terms of their authority
- the terms generally upon which an agent may represent and bind the principal and otherwise perform as an agent
¶ Features Of Custom Made Power of Attorney
A custom-made Power of Attorney facilitates more options and affords more certainty than a government form.
Issues often dealt with in a custom-made Power of Attorney that do not appear in a government form include:-
 Defining methods for an agent to accept appointment |
 A principal may define a method for acceptance of appointment (for example, requiring an agent to sign and deliver the Power of Attorney, issue certain notice prior to accepting appointment etc) which may be particularly usefel in Florida or Texas, where an agent might accept appointment by conduct[^20].) |
| Recording individual and class conditions |
A principal might wish to impose conditions governing the right of a person or commercial entity to be appointed as an agent. For example: (a) requiring any sub-agent to be over a certain age or have certain qualification are members of a specific group of candidates; (b) requiring that a person remain married to a family member so as to remain qualified for appointment; (c) requiring that members of a particular class of officeholders hold a certain qualification, or be a certain age etc.; (d) preventing a person being appointed as an agent if certain other persons are willing and eligible to be appointed to create a 'priority of appointment scheme’. |
| Defining the 'lifespan' of the Power of Attorney |
A principal might want to define the period between creation and termination of the Power of Attorney (i.e. the lifespan of the Power of Attorney, between when it becomes legally effective and ceasing to be capable of being used by an agent) for example, to accommodate travel, hospital admission or other leave dates. |
| Defining varying terms of authority |
A principal might want to define when during the lifespan of the Power of Attorney the agents may exercise authority to perform certain tasks, perhaps at different times and similar. |
| Defining tasks that agents may perform |
A principal might want to define the tasks that each agent may perform: (a) using unique words; (b) by 'borrowing' tasks from the legislation of any of the five (5) of the Six (6) Greater States that have statutory tasks (and perhaps editing them); (c) adopting a pre-prepared suite of tasks etc. |
| Allocating different tasks in various ways |
A principal might prefer to allocate different tasks to different agents, some tasks being performed; (a) by agreement by less than all agents; (b) independently by one agent; (c) by all agents by agreement; (d) by all agents by independently; (e) by either of two chosen agents independently; (f) by majority etc. |
| Optional relief arrangements |
A principal might authorize agents who are eligible and appointed to perform a certain task if all agent(s) who are authorized to perform that task are ineligible. |
| Authorizing the appointment sub-agents |
A principal might want to allow an agent to appoint someone to 'stand in their shoes' if they have a crisis that prevents them acting as an agent for a period of time, or they want to delegate an important task to an expert, or as part of arrangements whereby family members as agents have a role limited to selecting whom should manage the affairs of the principal at any given time[^30]. |
| Appointing a protector or monitor |
In Texas, California, Illinois or Pennsylvania a principal might want to appoint a protector, being someone authorized to designate successor agents on behalf of the principal and in New York, a principal might want to appoint a monitor being someone authorized to inspect records relating to a Power of Attorney. |
| Defining concepts like incapacity |
A principal might want to define 'incapacity ' using their preferred definition, perhaps avoiding one statutory definition in favour of another that is ‘borrowed’ from another state, or using unique words (for example, words focusing upon the principal's ability to perform the tasks authorized to be performed under the Power of Attorney, as opposed to loss of capacity in any broader sense). |
| Planning what occurs when an agent is ineligible |
A principal might want to include detail about issues like what occurs when an agent who is ineligible becomes eligible again, after they have been replaced by a successor agent. |
| Manage conflicts of interest |
A principal might want to deal with issues like benefits enjoyed by agents or third parties, for example defining different remuneration (i.e. payment) arrangements in respect of different agents, rights and obligations of different agents with respect to receiving loans or dividends, retention and use of confidential information and similar. |
| Including risk management provisions |
A principal might want to include provisions dealing with benefits payable to agents to be paid by another agent (i.e. not themselves), audit arrangements and similar. |
| Having commercial entities as principal or agent |
An author might prefer to name a commercial entity (i.e. business trading as a company, partnership, corporation, trust, association etc.) as the principal or as an agent in a Power of Attorney[^10]. |
¶ A Suggested Framework
A Power of Attorney might usefully consist of the following parts:-
| Inception | Confirming that the Power of Attorney is binding upon the principal upon being signed by the principal, or otherwise (see the discussion of 'becoming effective' in respect of springing Powers of Attorney for more insight) about the concept at stake. |
| Identification of Agents | Identification of the agents to be appointed under the Power of Attorney (including identification of any individual conditions applicable in respect of the appointment of an agent). |
| Acceptance of Appointment | Definition of the the method by which any agent, successor agent or sub-agent may accept appointment (explaining for example whether they must sign and deliver a copy of the signed Power of Attorney to the principal before their appointment can be effective.) |
| Terms of Authority | Identification of when agents may commence to exercise authority to perform tasks they are authorized to perform under the Power of Attorney (perhaps also identifying when agents may not perform those tasks, during the lifespan of the Power of Attorney). |
| Termination | Identifying when the Power of Attorney terminates. |
| Governing Jurisdiction | Confirming the state from which laws are to be taken to be the laws under which the principal asserts to create the Power of Attorney etc. |
| Transactions & Tasks | Providing insight about the tasks that agents may perform. |
| Successor Agents | Identifying successor agents for potential appointment (and any protector in California, Texas, Illinois or Pennsylvania). |
| Sub-Agents | Explaining the authority of agents or successor agents with respect to appointing sub-agents. |
| Class Conditions | Defining of any class conditions operating in respect of any particular class of officeholders. |
| Directions | Recording any directions that agents must follow. |
| Limitations | Recording any limitations with respect to matters including for example, the ability of agents tp perform tasks. |
| Other Provisions | Addressing mechanical issues, like revocation of earlier Powers of Attorney, overlapping tasks, ineligible agents becoming eligible etc. |
¶ Using Custom-Made Powers of Attorney
¶ California
¶ (Optional Government Form For Powers of Attorney)
An optional government form is available for use to create a Power of Attorney in California:-
- whether or not a government form is used, a Court may be approached for help, if a third party will not accept a Power of Attorney
- unless a government form is used, it is not possible to incorporate statutory tasks by mere reference - that said, nothing prevents the statutory tasks from being set out in full in a custom-made Power of Attorney (although the language in the legislation that tends to expand the scope of the statutory tasks where they are cited in a government form, may not operate, if a government form is not used).
¶ Florida & Pennsylvania
¶ (No Government Form)
There is no government form available in Florida or Pennsylvania to create a Power of Attorney.
A custom-made Power of Attorney could be used in Florida or Pennsylvania.
¶ Texas
¶ (Optional Government Form For Durable Powers of Attorney)
An optional government form is available for use to create a durable Power of Attorney.
A custom-made Power of Attorney could be used in Texas, to create either a durable or non-durable Power of Attorney.
¶ New York
¶ (Government Form Employs Enforcement Scheme)
In New York (unlike California, Florida, Pennsylvania, Texas and Illinois):-
- a Power of Attorney scheme operates under which the use of a government form makes a difference, in terms of whether a Court may be asked to compel a third party to do business with an agent
- unless a government form has been used, the agent and principal cannot approach a Court to compel a third party to do business with an agent
- A custom-made Power of Attorney could be used in New York
In New York, a person could use a custom-made Power of Attorney and a government form (see the heading Using A Government Form In Conjunction With a Custom Power of Attorney) to achieve objectives.
¶ Illinois
¶ (Government Form Without Enforcement Scheme)
Illinois does not have a regime that permits a Court to compel a third party to do business with an agent.
An optional government form is available for use.
A custom-made Power of Attorney could be used in Illinois.
¶ Next Page Guide
¶ Features
- The next page examines the key features of a Power of Attorney.
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