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What is a Power of Attorney?

An ordinary power of attorney is a legal document, signed by a competent person, which gives another person the authority to handle some or all the first person's affairs.  The first person is called the "principal."  The individual acting on behalf of the principal is called the "agent" or "attorney-in-fact" (although he or she need not actually be an attorney).  Powers of attorney are usually prepared by lawyers.

A power of attorney may be very limited, covering a single transaction or event.  A power of attorney also may be very broad, giving the agent decisionmaking power over all aspects of your financial and personal life.

A power of attorney is only valid if the principal was mentally competent when he signed it, and powers of attorney generally end automatically when the principal dies or becomes incapacitated.  In addition, the power of attorney itself may specify when it shall end -- such as the occurrence of an event (e.g., "This power shall remain in effect until I return to my residence from my trip to Paris.") or a certain date (e.g., December 25, 2008).

What Are Durable Powers of Attorney and Springing Powers of Attorney?

As noted above, an ordinary power of attorney is good only as long as the principal is mentally alert.  A durable power of attorney is a special kind of power of authority that continues to operate even after the principal becomes incompetent.  The document must contain these or similar words, "This power of attorney shall not be affected by subsequent disability or incapacity of the principal."  This is governed in Arkansas by the "Arkansas Durable Power of Attorney Act," A.C.A. § 28-68-201, et. seq.  With both an ordinary power of attorney and a durable power of attorney, it is presumed that the agent's power begins when the power of attorney is signed.  A springing power of attorney is one that provides for the commencement of the power at some future date.

The qualities of durable and springing powers of attorney may be combined in a power of attorney that becomes effective only if the principal becomes incapaci­tated.  The document would contain the words, "This power of attorney shall be­come effective upon the disability or incapacity of the principal," or similar words.