What Is a “Power of Attorney” and How to Use It

People commonly ask another person to act as their “power of attorney.”  Read on to learn what this means, why you should consider it, and how to get started.


Q: What is an “attorney-in-fact?”

A:  First, you should know what an “attorney-in-fact” is and what it means.  A person who has been delegated powers that you ordinarily have is called your “attorney-in-fact.”  This means that the person  is given all the powers you have, or just certain powers you decide they should have.


Q:  If someone has been designated “attorney-in-fact” then what is a “power of attorney?”

A:  A “power of attorney” is the actual legal document that designates someone as your attorney-in-fact.  If it has the proper elements, the document has legal effect to those whom it is presented.


Q:  What rights can a “power of attorney” confer?

A:  Generally, all legal rights that you possess can be conferred on someone else. These rights include making education decisions (with some limitations), banking decisions, child care arrangements, entering into contracts, making business decisions and many other decisions that you could ordinarily make consistent with your personal or business affairs.  Therefore, it is important to grant power of attorney only to someone who is trustworthy. It is also helpful for that person to understand your decision-making philosophy in order to represent you properly.


Q:  How long does a “power of attorney” last?

A:  Typically they are not limited by time unless you specifically say otherwise.  For example, you could make it unlimited in time because you want someone to make decisions for you if you become incapacitated in some way.  Or, you could limit it to a few months, weeks or days if you need someone to act for you while you are on vacation, out of the country, or the like.  Since you are delegating powers it is important to decide how long you want it to last.


Q:  What do I need to make one?

A:  Not much.  Mostly you need a recitation of the people involved, what powers you are delegating, and how long you are delegating the powers.  Then you need to sign it in front of a notary public.  Notaries are often found at banks, local government offices, and even libraries. “Power of attorney” documents are so easy to make that the North Dakota Supreme Court has put an example on its website, www.ndcourts.gov.


Joseph Wetch, is a Fargo, ND lawyer practicing in all North Dakota, Minnesota and South Dakota courts.  Contact him at 701-232-8957 or jwetch@serklandlaw.com.