You have to make several decisions about what kind of POA to use. First, you should decide whether the POA should grant the agent “general” authority or “special”/”limited” authority. Then you must decide when the POA will become effective: immediately or only if a particular triggering or “springing” event occurs. As explained later, you also need to decide how long the POA will last. There are advantages and disadvantages to different choices.
The “General” POA
A “general” POA gives an agent a wide range of powers, essentially enabling the agent to do almost anything on behalf of the principal. However, even with such broad powers, there are some things that an agent with a general POA cannot do. For example, an agent acting under a general POA cannot take oaths, go through marriage ceremonies, sign wills or, in some circumstances, access a safety deposit box on your behalf.
A general POA is not necessary, or even recommended, for most people who face deportation. However, it can be useful if you do not have much time before being deported and need to sell a business or have access to money when you get to your home country.
The “Special” Or “Limited” POA
A “special” or “limited” POA allows an agent to do only the specific acts listed in the POA document. It can be used for a wide range of activities. For example, a special POA can give an agent authority to access a bank account, sell a home or car, ship personal property to another country, or care for minor children.
Although this type of POA is called “limited,” in many instances it can actually be more useful and effective than a general POA. Banks, doctors or school officials may be more likely to accept limited POAs because the acts that the agent can undertake are clearly specified, giving a clearer idea of the your intent. This type of document is therefore considered more trustworthy.
The General Rule: POA Effective Immediately
Generally, a POA becomes effective as soon as it is signed.
The Springing POA: POA Effective in The Future
In many states, a general, special, or limited POA can be written as a “springing” POA that becomes effective only after a certain event occurs. These types of POA are sometimes used for sick people who want the POA to become effective only if they become too sick to make decisions. In the immigration context, a springing POA might be used to make the POA effective only if you are detained or deported.
A springing power of attorney may be a good option if you want to ensure that a potential agent cannot take action on your behalf unless a specific condition occurs. It has the advantage of ensuring that an agent cannot use a POA to influence or coerce you before the triggering condition occurs.
However, there are disadvantages to using a springing a POA:
- Under a regular, non-springing POA, the agent is required to execute your wishes, so a trustworthy agent should not take action using a general POA under any circumstances that do not match your wishes. If you feel you cannot trust a potential agent to act in accordance with your wishes under a general POA, you should consider naming a different agent.
- Second, many institutions may be unwilling to accept a springing POA as a matter of policy, because they are not accustomed to seeing this type of document, or because they feel they cannot adequately verify that the triggering event has occurred.
- Third, in the immigration context, a springing POA may be difficult to use in circumstances where your incapacity may not be permanent, such as if you are detained but not yet deported.
If you wish to use a springing power of attorney, the POA should be very clear about what the triggering event is, and how the agent will prove that it has occurred.
- Some state POA forms may have a “special instructions” or “agent’s certification” section that can be used to explain the triggering event and how the agent must prove it.
- One option could be to state that the POA becomes effective if the principal (you) is deported from the United States, and that this must be proven by having a specific person swear to that fact before a notary public. For example, the designated person would write “I [name] declare that [yours name] has been deported.” Then, if you are deported, that person would then sign and date the piece of paper and attach it to the power of attorney. The POA would be effective as of that date.
- Some states may also require specific language to make effective the declaration that a springing event has occurred. For example, California requires the statement: “I certify (or declare) under penalty of perjury that the foregoing is true and correct.”[1]
Remember, however, that many institutions may be hesitant to honor a springing POA, so making the required proof of triggering more official may help make the POA more effective. Consider consulting an attorney to identify types of formal proof that may be available to show that deportation or another triggering event has occurred, then stating, in the POA, that the proof must be attached to the POA in order to be effective.
[1] Cal. Prob. Code § 4129(b) (West, Westlaw through Ch. 4 of 2017 Reg. Sess.).