Disclaimer: This article does not constitute legal advice. The writer is not a lawyer. Please visit with your installation’s JAG office to receive professional legal advice.
by Christine Maxwell, Guest Contributor
A power of attorney is one of those little things you don’t ever need until you need it.
It’s a powerful legal document that authorizes somebody else to make decisions regarding things such as your finances, your medical care and other legal matters.
A power of attorney is used when a person needs to appoint a trusted individual to make decisions on their behalf when they are not available, due to not physically being present (e.g. deployment) or being incapacitated (e.g. coma).
Before we go too deep, let’s understand the basic players. The principal is the person who grants their authority to someone else. The agent or attorney-in-fact is the designated person who assumes the authority from the principal. Even though the person in the role of agent is often referred to attorney-in-fact, it has nothing to do with actually being a licensed attorney. You may also see a power of attorney abbreviated as POA.
Who Needs A Power of Attorney?
Whether you are the military spouse or the service member, the military lifestyle is fast-paced and plans change unexpectedly. If your spouse is going to be away due to deployment or training, a power of attorney will keep you prepared for any situation where you might need to act on your spouse’s behalf.
Agent: You are married to a service member and want them to sign a power of attorney for you so that you can handle their (or your joint) financial and legal matters while they are away.
Principal: You are in the military and you grant power of attorney to a spouse, trusted family member or friend while you are deployed, in training or stationed at a base far from your home or family.
Can You Give Me Examples Of When A POA Might Be Necessary For A Military Spouse?
Think about realistic and upcoming situations where a POA would be necessary. Below are real-life examples:
- Service member is deployed and spouse needs to register newborn in DEERS
- Renting or buying a house, re-financing a house in service member’s name or jointly
- Needing access to an account that is in the service member’s name
- Buying/selling a vehicle that is owned jointly or solely by the service member
- Receiving/storing household goods (if you are not listed on the paperwork)
- Replacing a dependent ID
- Making travel claims at the finance office
Different Types Of Powers Of Attorney
Special Power of Attorney. This power of attorney is for specific purposes and limits the power of an agent. It could be specific to handling certain types of matters like financial transactions at a bank or for a specific event such as buying a vehicle at a specific car dealership. It is only good for a very limited time, expiring 1 or 2 years after signed.
General Power of Attorney. The broadest form of a POA. It allows agents to conduct general business and legal matters for a principal. Because a general power of attorney is so broad, many businesses and institutions often prefer a special power of attorney to conduct larger transactions.
Durable Power of Attorney. This power of attorney survives incapacitation. It must specifically list the principal’s intent for the agent after incapacitation. Because durable POAs are often used for long-range estate planning, they often do not have an expiration date.
Medical Power of Attorney. Also known as an advanced medical directive, it memorializes the principal’s wishes on things such a life support, and can allow the agent to make life or death decisions on the principal’s behalf, even if the principal is incapacitated.
Why Is It Called A Military Power Of Attorney?
A military power of attorney is any POA done by a military lawyer, aka a JAG. Although each state has its own laws, a military power of attorney is executed under a federal law (10 U.S.C. §1044(b)). It includes language to put people on notice that it may look different because it was prepared by the military, but will have the same legal effect as any POA prepared and executed in accordance with the laws of the state concerned.
A Few More Things To Consider
Businesses and institutions don’t have to accept your power of attorney even if it is a perfectly executed and legal document.
They may have their own specialized power of attorney that they want you to use instead of the one that your spouse spent drafting, even if it is very specific in its purpose. Although it’s aggravating, keep in mind they are trying to protect the best interests of the service member.
If you know you are going to make a big purchase that will require a power of attorney, work with the business beforehand to see what they are willing and not willing to accept.
Don’t fret if your spouse is already deployed and they didn’t have time to sign a power of attorney or you don’t have the specific type of power of attorney you need. Your spouse will be able to work with a JAG that is also deployed to write up the power of attorney you need. However, it will be less of a headache to establish a power of attorney before your spouse deploys.
When you are named an agent in a power of attorney, if you choose to make decisions for your principal, you become a fiduciary. Fiduciaries manage money or property for someone else and they are required by law to act in the principal’s best interests, make careful decisions and keep good records.
If you make decisions that are not in the best interest of the principal, (like buying a Mustang at 28% interest and driving it around while they are deployed) you could be sued by them.
A power of attorney should only be given to an agent that the principal fully trusts. Aside from the fact that a power of attorney allows a person to make some really important decisions on another person’s behalf, it can be difficult to revoke a power of attorney.
A good rule of thumb is to put an end date on a power of attorney, such as a few months after the deployment is scheduled to end. Otherwise, a power of attorney can only be revoked if the agent or principal die or the principal revokes the power of attorney in writing. If a principal decides to revoke a power of attorney, due to a divorce or other circumstances, they should spread the word to any businesses or people that were working with the former agent.
It’s not difficult to establish a power of attorney before your spouse deploys, so it should be one of the many items you check off before a deployment. Take the time as a couple to discuss obtaining a power of attorney and which type of power of attorney is the right choice for your family.
What questions do you have about powers of attorney?
Christine Maxwell is an Army wife and toddler mom. She works as a Budget Manager in Higher Education and also manages HerMoneyMoves, a blog about personal finances, career and military family life geared toward military spouses and their families.