It is very important to choose the right agent. POAs can be abused, especially if you are detained or have been deported and cannot monitor the agent’s actions.
An agent must be a legal adult (18, 19 or 21 years old) depending on the state), but otherwise you have a very wide range of choices when picking agents for a POA. It is not necessary that the agent speaks English or has any kind of educational qualifications. It is also not necessary to include the agent’s contact information or proof of identity when drafting the POA (though for practical purposes it may be useful to include the agent’s address on the document).
When choosing an agent, you should consider:
- A person who resides in the same state where the POA will be used, since different states may have different requirements for writing a valid POA;
- A person who can be trusted to act wisely and in accordance with your wishes;
- A person willing to expend the time and effort necessary to manage your financial assets;
- A person who is comfortable dealing with banks and other financial institutions and who has a basic understanding of financial issues; and
- A person who has the necessary documentation to be in the United States legally or who will not otherwise be subject to detention or deportation in the near future, if possible.
Note: You should take caution in choosing a spouse or intimate partner as your agent. Especially in abusive relationships, the parties’ interests often become quickly opposed if there is a divorce or breakup. Many service providers have seen immigration status used as a means of control and coercion by abusive partners.
It is possible to draft several different POAs and to choose different agents to do specific things. For example, you could write one POA naming your business partner as agent and give that business partner the power to sell your interest in the business or to run the business on your behalf. You could then also write a second POA naming, for example, your sister and brother‐in‐law as agents to take care of your minor children.
In some states, it is also possible to draft a POA that names more than one agent. Unless the POA specifies that the agents are authorized to do different things or otherwise do not have to act jointly, this will mean that both agents must authorize any action under the POA. This can ensure that no single agent can use or abuse the POA, but can also make it difficult to use the POA by requiring the presence of two people for any action.
If you have bank accounts or other property in several states, it may be necessary to write a POA for different agents who reside in each of those states.[1]
A NOTE TO AGENTS
It is possible that a third party (like a bank or a school) will refuse to honor a POA, regardless of its legality or specificity. If an agent encounters this type of problem, they should contact a lawyer for advice. The agent may be able to bring a lawsuit against the third party to enforce the POA. While the rules surrounding such lawsuits vary from state to state, the case would likely focus on whether the third party is acting reasonably or unreasonably. To avoid these issues, entities with whom you do business may have approved forms for your use.
Additionally, to protect the agent’s personal assets, you may want to write in the POA that if the agent has to bring a lawsuit to enforce the POA, the attorney’s fees will be paid from your money.
- An agent will need to use the original POA, and you should keep a copy for your records.
- An agent is legally obligated to act in the principal’s best interests. Among other duties:
- An agent must keep his or her money separate from the principal’s money;
- An agent must not stand to profit from any transaction where they are acting as the principal’s agent;
- An agent must not give or transfer the principal’s money or property to the agent, unless the POA specifically allows the agent to do this; and
An agent should keep clear records of his or her activities as agent under a POA.
[1] Please also review the “How do you draft a POA?” section below for information on how to draft a POA granting authority to an agent that will be valid in most, if not all, of the states where it may be used.