Yes, everyone over 18 should have a personal power of attorney.

I can count on one hand the number of times that I have prepared a will for a client without also preparing a power of attorney. The state of Delaware writes a will for any resident of the state who dies without one (see Delaware's laws of intestacy) and has a method to get someone’s signature if they are unable to sign their own name. If you are not competent and cannot sign your name, no one else can sign your name unless one of the following is true:

• You have signed a power of attorney.
• Someone goes through a formal guardianship proceeding in the Court of Chancery.

A power of attorney can be general or limited. A limited power of attorney is for a specific, limited purpose. Limited powers of attorney are frequently used to authorize someone to sign the closing documents in a real estate transaction – not the deed itself but any of the many other documents necessary to settle, including a settlement sheet for example.

A general power of attorney is much broader in scope – it attempts to allow the agent, otherwise known as the “attorney-in-fact,” to sign virtually anything on your behalf. Each attorney has their own form that they have either developed or obtained from another attorney. After the power of attorney is drafted, you should read the form to determine what powers are granted to your agent. If you are uncomfortable with a certain power, simply ask the attorney to take that power out of the form. For instance, you must expressly give your agent the power to make gifts. If you want to give your agent that power, then you must tell your attorney to include that authority in the form.

Powers of attorney can either be effective immediately or take effect only upon incapacity, which is often referred to as “springing.” However, I believe that if you trust someone enough to make your financial decisions while you are not competent, you should be able to trust them when you can watch what they are doing.

Part of our First State Fundamentals: Estates & Trusts series, providing straightforward answers to everyday legal questions that affect Delawareans. Have a question you would like to see addressed? Send it to Beth Miller at bbmiller@foxrothschild.com. 

This column discusses general legal issues and is intended for educational purposes. The information presented should not be considered legal advice as to a specific fact pattern.