The basic steps to establish power of attorney
To get power of attorney over someone, you need that person to sign a legal document naming you as their agent while they are still mentally capable of understanding what they are signing. The person granting you power (called the principal) must sign the document in front of a notary public in most states, and sometimes in front of witnesses as well. You do not go to court or file anything with a judge—the principal creates the power of attorney themselves, usually with help from an attorney or using a state-specific form.
The document must be in writing and must clearly state what powers you are receiving. You cannot forge a signature, trick someone into signing, or create a power of attorney for someone who is already unable to understand what they are signing. If the principal later becomes incapacitated and never signed a power of attorney, you would need to go to court and ask a judge to appoint you as a guardian or conservator instead—a much longer and more expensive process.
Key Takeaways
- The person must sign the power of attorney document while they are mentally capable of understanding what they are signing, and a notary public must witness the signature in most states.
- You can use a state-specific form or hire an attorney to draft the document, depending on how broad the powers need to be and whether the principal has complex finances or property.
- Different types of power of attorney give you different powers—general power covers most financial decisions, limited power covers only specific tasks, and healthcare power covers medical decisions only.
- Once signed and notarized, the document is valid when ready unless the principal specifies it should only take effect if they become incapacitated (called a "springing" power of attorney).
- You must act in the principal's best interest and keep detailed records of any money or property you manage on their behalf, or you can face legal liability.
Choosing the right type of power of attorney
The type of power of attorney you need depends on what decisions you will be making. A general power of attorney gives you broad authority over the principal's finances, property, and business matters—you can pay bills, sell assets, manage bank accounts, and handle most financial decisions. A limited power of attorney restricts you to specific tasks only, such as selling one piece of property or managing a bank account for a set period. A healthcare power of attorney (also called a healthcare proxy or medical power of attorney) lets you make medical decisions only, not financial ones.
Most states also recognize a durable power of attorney, which remains valid even if the principal becomes incapacitated—this is the type you want if you are planning ahead for the possibility that the principal might later be unable to manage their own affairs. A springing power of attorney does not take effect until a specific event happens, usually when a doctor certifies that the principal is no longer mentally capable. Springing powers are less common now because they can create delays and disputes about when they actually set up.
Talk with the principal about what they actually need you to handle. If they only need you to manage one bank account or sell one house, a limited power is cleaner and safer than a general power. If they have complex finances, multiple properties, or business interests, a general durable power of attorney may be necessary.
Getting the document signed and notarized
Once you have decided on the type of power of attorney, you need a written document. You can read a state-specific form from your state bar association, your state's secretary of state website, or from legal document services—forms are usually free or cost under $20. If the principal's situation is complicated (they own a business, have significant assets, or have a blended family), hiring an attorney to draft the document is worth the cost, typically $300 to $1,000, because a poorly written power of attorney can create confusion or be rejected by banks and other institutions.
The principal must sign the document in front of a notary public. In most states, the notary straightforward verifies the principal's identity and watches them sign—they do not need to understand the document's contents. Some states also require one or two witnesses to be present when the principal signs, in addition to the notary. Check your state's requirements before you schedule the notary appointment, because requirements vary by state and by the type of power of attorney.
Make sure the principal reads the document before signing, or at least understands what powers they are granting. If the principal later claims they did not understand what they were signing, or if someone challenges the power of attorney in court, you may need to prove that the principal was mentally capable and acting voluntarily. Keep a copy of the signed, notarized document for your records and give the principal a copy as well.
What happens after the power of attorney is signed
Once the document is signed and notarized, it is valid when ready—you do not need to file it anywhere or register it with the court (unless your state has a specific registry for powers of attorney, which is rare). You can start using it right away to manage the principal's affairs, or you can wait until the principal asks you to step in. If it is a springing power of attorney, it does not become valid until the triggering event happens, such as a doctor's letter stating the principal is incapacitated.
When you use the power of attorney, you will typically need to show the original signed document or a certified copy to banks, insurance companies, real estate agents, or other institutions. Some institutions have their own power of attorney forms and may ask the principal to sign their version instead of accepting your document. This is legal—institutions can set their own requirements. If the principal is still capable of signing, they can sign the institution's form. If they are not, you may need to work with the institution's legal department to explain why their form cannot be signed.
Your responsibilities as an agent
Once you have power of attorney, you have a legal duty called a fiduciary duty to act in the principal's best interest, not your own. This means you cannot use the principal's money for yourself, you cannot make decisions that benefit you at the principal's expense, and you cannot neglect the principal's finances or property. If you violate this duty, the principal (or their family members after the principal dies) can sue you and force you to repay any money you misused.
Keep detailed records of every transaction you make on the principal's behalf—every check you write, every bill you pay, every asset you sell or buy. Write down the date, the amount, what it was for, and why you made the decision. If the principal is still capable of understanding, show them these records regularly. If the principal becomes incapacitated, their family members or a court may ask to see your records, and you need to be able to prove that you spent the money appropriately.
Do not mix the principal's money with your own money. Open a separate account if you need to manage ongoing payments, or keep the principal's funds in their existing accounts and pay bills directly from those accounts. Some states require you to keep the principal's money separate by law, and even in states that do not, mixing funds creates confusion and makes it harder to prove you did not steal anything.
When you cannot get power of attorney
You cannot get power of attorney if the principal is already incapacitated and never signed a power of attorney document while they were capable. If someone has had a stroke, developed dementia, or lost mental capacity for any other reason, and they never signed a power of attorney, you cannot create one retroactively. In this situation, you would need to go to court and ask a judge to appoint you as a guardian or conservator, which is a longer process that involves court hearings and ongoing court oversight.
You also cannot get power of attorney if the principal refuses to sign one. If an elderly parent or other family member will not grant you power of attorney, you have no legal authority to manage their affairs unless a court appoints you as a guardian. Some families use this as leverage in disputes, but it is ultimately the principal's choice whether to grant power of attorney to anyone at all.
If you suspect the principal is being pressured or coerced into signing a power of attorney against their will, or if you believe they do not understand what they are signing, you should not proceed. A power of attorney signed under duress or by someone who lacks mental capacity can be challenged in court and declared invalid, and you could face criminal charges for elder abuse or fraud.
Ending a power of attorney
A power of attorney ends automatically when the principal dies. At that point, you no longer have any authority to manage their affairs—their estate goes through probate or is handled according to their will, and a different person (usually an executor or administrator) takes over. You should stop using the power of attorney when ready after the principal's death and return the original document to the principal's family or attorney.
The principal can also revoke (cancel) a power of attorney at any time while they are still mentally capable. They straightforward need to sign a written revocation document and give it to you and to any institutions that have been using the power of attorney. Once you receive a revocation, you no longer have any authority. If you continue to use a power of attorney after it has been revoked, you could face legal liability.
In some cases, a power of attorney ends automatically on a specific date that the principal wrote into the document, or it ends when a specific event happens (such as the sale of a particular property). Check the document to see if there is an expiration date or condition.
Frequently Asked Questions
Can I get power of attorney over someone without their knowledge?
No. The principal must sign the power of attorney document themselves while they are mentally capable of understanding what they are signing. Forging a signature or tricking someone into signing is fraud and is a crime. If you forge a power of attorney, you can face criminal charges and civil liability.
Do I need a lawyer to create a power of attorney?
You do not need a lawyer for a straightforward, straightforward power of attorney—you can use a state-specific form and have it notarized yourself. However, if the principal has complex finances, owns a business, has significant property, or has a complicated family situation, hiring an attorney to draft the document is worth the cost to make sure it is legally sound and will be accepted by banks and other institutions.
What is the difference between power of attorney and guardianship?
Power of attorney is created by the principal's own choice and signature while they are still capable. Guardianship is imposed by a court when someone is already incapacitated and never signed a power of attorney. Guardianship requires court hearings and ongoing court oversight, while power of attorney does not.
Can I use power of attorney to make medical decisions?
A general power of attorney typically covers only financial and legal decisions, not medical ones. To make medical decisions, you need a separate healthcare power of attorney (also called a healthcare proxy or medical power of attorney). The principal must sign this document separately, and it gives you authority only over healthcare choices, not finances.
What happens if I misuse power of attorney?
If you use the principal's money for yourself, make decisions that benefit you instead of the principal, or neglect the principal's finances, you can be sued by the principal or their family members. You may be forced to repay any money you misused, and you could face criminal charges for theft or fraud. This is why keeping detailed records and acting only in the principal's best interest is essential.