Power of Attorney: When to Use a Notary and When to Call a Lawyer
Power of Attorney (POA) documents provide essential legal protection that enables another individual or institution to act on your behalf in financial, legal, and healthcare issues. While creating and validating one may seem straightforward, their creation and validation require careful thought; sometimes you might require notary public services while other times legal advice.
In this blog, we will go over different types of Powers of Attorney documents, the roles played by notaries and lawyers in creating them, and situations when professional legal advice might be necessary versus when notarization alone suffices.
What is a Power of Attorney?
Power of Attorney is a legal document that grants another individual, known as your agent or attorney-in-fact, authority over financial, legal, or healthcare decisions on your behalf. They could take care of everything from finances, legal issues, or health care decisions all the way down to specific tasks or transactions you request them for. A POA may grant either broad powers or specific transactions or tasks included within it.
POAs should only be granted when the principal (the person granting it) is of sound mind at the time they sign, with the promise that the agent will be acting in their best interests. POAs provide invaluable peace of mind when facing medical challenges or planning for potential incapacity.
Types of Power of Attorney
- General Power of Attorney:
This document gives the agent broad authority over financial and legal affairs on behalf of their principal. Typically used when someone cannot manage their affairs themselves but still remains mentally capable.
- Special (Limited) Power of Attorney:
With this kind of POA, an agent is granted authority for only certain tasks or for a specified duration – for instance selling your car or managing one real estate deal on your behalf.
- Durable Power of Attorney:
A durable POA remains effective even if its principal becomes mentally incapacitated, making this form suitable for estate and healthcare decision-making purposes.
- Healthcare Power of Attorney:
A healthcare power of Attorney allows an agent to make medical decisions for someone if they become incapable. This document can also aid with planning end-of-life care needs.
When to Use a Notary Public for a Power of Attorney
Many states and provinces, including Alberta, require certain legal documents, like Powers of Attorney, to be notarized in order to authenticate them and ensure that it was signed voluntarily without coercion and that no fraud took place when its authenticity is established by notarization. Notarization ensures the document has not been falsified.
When creating a simple Power of Attorney document – such as for handling one-time financial transactions–a notary public in Edmonton may suffice. They will witness and attach their official seal, verifying its legal validity, and serve as witnesses during the signing process. Here is when using notaries is appropriate:
1. Simple Financial Transactions
For simpler transactions such as selling property or overseeing bank accounts when you are out of the country, notarization could be enough to secure the legal bindingness of documents and ensure they meet legal standards.
2. Limited Power of Attorney
For short-term transactions or transactions related to one specific event (e.g. closing real estate deals or filing taxes on your behalf), limited POA only needs notarization as proof of its validity; this ensures your agent has legal permission to act on your behalf and sign properly.
3. Foreign Affairs
If your international transaction requires you to appoint someone in Canada as your agent, some countries require notarization in order to meet international standards and avoid delays and possible prosecution. Notaries can ensure your document meets these international specifications.
Under most circumstances, engaging a lawyer is usually unnecessary, and instead, a Notary Public can provide necessary services efficiently and cost-effectively.
When to Call a Lawyer for a Power of Attorney
While notaries can authenticate POA documents, complex or long-term POAs that cover estate planning or healthcare decisions need the specialized legal expertise provided by lawyers such as Team Law Group. Here is when to call them for guidance:
1. Estate and Long-Term Care Decisions
To create a durable Power of Attorney for estate or long-term healthcare planning decisions, legal advice is crucial. A lawyer will be able to guide your understanding of granting someone broad powers over both finances and personal affairs for an extended period.
2. Complex Financial Situations
For business owners or individuals with complex financial portfolios, creating a Power of Attorney requires more complex consideration. A lawyer is best qualified to structure this type of POA to give your agent all necessary powers without placing you at unnecessary risk or misuse of authority.
3. Revoking or Contesting an Existing Power of Attorney
In case you require revoking or challenging an already issued Power of Attorney or are involved in a legal dispute regarding misuse by your agent, then legal assistance from Lawyers would be invaluable in order to renounce and defend yourself effectively from legal challenges and preserve your rights. A Notary Public cannot offer such advice and protection alone.
4. Guardianship and Incapacity Planning
Individuals looking ahead to potential incapacity issues or seeking to appoint guardians for minors often benefit from creating durable POAs (especially healthcare POAs) so their healthcare and financial decisions will still follow their desires if they become incapacitated in future years. Lawyers can assist in creating durable POAs or healthcare POAs which ensure decisions will continue as desired when you cannot make these choices yourself.
When You Need Both: Lawyers and Notaries
A big question many people have is who do you legally need notaries vs. lawyers? Does it have to be either or? The answer is no. There are instances where you may need the expertise of a lawyer and the qualifications of a Notary public too.
Example: When working with Team Law Group to draft a durable Power of Attorney document for estate planning purposes, their lawyer will draft it to reflect your legal intentions as closely as possible. Once completed, you still must notarize it for it to become legally binding.
Likewise, when undertaking international transactions that require Powers of Attorney (POAs), both documents may need to be written by and notarized in Canada and any other nation involved.
Conclusion
Drafting a Power of Attorney document is an important legal decision with far-reaching effects on your finances, health, and estate. Although notarization ensures its legal validity, legal advice from professionals like those at Team Law Group ensures your POA truly reflects and protects your intentions as intended by you and protects any associated interests. Knowing when it’s appropriate to use notaries public versus lawyers makes all the difference!