POWERS OF ATTORNEY IN MINNESOTA

Issues, Facts, and Commonly Asked Questions

WHAT IS A POWER OF ATTORNEY?1

Created by a

Principal

Legal Document

Empowering an Agent, also known

as an Attorney in

Fact

Giving the Agent

specified Powers to act

on the Principal’s

Behalf

WHAT DO THEY DO?2

Principals can give their agents numerous different types of decision-making authority

The power to sell or manage your property

Manage your everyday finances

Purchase real estate or insurance on your behalf

File your taxes

And more

HOW DO YOU MAKE A POWER OF ATTORNEY?3

In Minnesota you can only create a power of attorney in writing

DocumentMinnesota law

provides a standard form you can use.

You can also create your own form to

suit your own purposes.

Signed

The principal has to sign the power of attorney form

in front of a notary public.

Dated

Power of attorney

document has to be clearly dated.

Specific

The document must detail the

powers the principal is giving

the agent.

CREATING THE POA

GRANTING POWERS

When granting power of attorney, only the principal can decide what powers to give

However, all those powers must be

specifically granted or, if the principal wants to give broad powers, the

power of attorney document must specify that it transfers general power

Limited powers

These are specific powers granted to the agent by the principal. All other rights and abilities not given remain solely those of the principal.

General

Giving general powers of attorney transfer all possible rights to the agent

CAPACITY

If you want to create a power of attorney you

have to meet some

minimum legal requirements

Mentally sound. You can only grant power of attorney when you maintain the ability to make

your own choices and understand how those choices affect others. You cannot give power of

attorney when, for example, you are delirious, suffering from a mind altering disease, or are

otherwise incapable of understanding your own decisions.

Adult. You must be at least 18 years old create a power of attorney.

AUTHORITY

Creating a power of attorney

does not give away your rights, it simply allows your agent

to act on your behalf

Termination• If you are not happy with

how your agent is acting you can terminate the agent at any time as long as you are mentally sound

Modification• The principal has the right

to change the power of attorney terms at any time as long as he or she remains mentally sound

YOUR AGENT

When the principal chooses someone to act on his or her behalf,

that person earns the title of attorney-in-fact, also called an agent

Lawyers not necessary. The title “attorney-in-fact” does not mean you have to select a lawyer. It also does not give

your agent the right to practice law.

Fiduciary. An agent has the legal responsibility to do what is in the principal’s best interests.

Capable. Just like someone who makes a power of attorney, an agent has to be legally capable of serving in the

position. You must select a capable adult of sound mind. Minor children cannot serve as an attorney-in-fact.

Voluntary. Your selection of attorney-in-fact has to be willing to serve. If the

attorney-in-fact declines to serve or, after accepting, chooses to stop being your agent, you should have a replacement

agent ready.

Person or organization. You can select either an individual or an organization.

Depending on the kinds of responsibilities you want your agent to carry out, one

choice may be more suitable than another.

WHAT IS A DURABLE POWER OF ATTORNEY?4

Durable powers continue to allow the agent to act on your behalf even if you lose your

ability to make decisions

Incapacitation• As a general rule, should

you become mentally incompetent all powers of attorney will automatically be terminated

Exception• However, if you create a

durable power of attorney, these powers will continue to remain in effect even if you become incapacitated

DEATH

All powers of attorney, whether durable or not,

terminate once the principal dies

Notification

An agent can continue to act as long as he or she believes the principal is alive, or as long as he or she believes the powers of attorney are still in effect. Once notified of the principal’s death, the agent’s power ends.

Estates

Principals commonly choose agents to continue to represent them after the principal has died. If this is the case the principal has to nominate the agent to serve as executor, also known as a personal representative, through the principal’s last will and testament.

OTHER CONSIDERATIONS5

Powers of attorney allow you to choose who represents you

Should you become incapacitated but not dead, someone will have to manage your affairs

CONSERVATORSHIP

If you don’t choose who that person is a court will have to do it for you

CONSERVATORSHIP

If you don’t choose who that person is a court will have to do it for you

Spouse

• The property that you and your spouse owned together will still be managed by your spouse, but there are significant limits to what a spouse can do.

Conservator

• A person a court appoints to manage finances is known as a conservator.

Probate

• To appoint someone the court will have to hold hearings.

INHERENT LIMITATIONS

There are some things agents are

never allowed to do

Creating a power of attorney that grants any prohibited powers could result in a court finding the power of attorney is

invalid

Non-Delegable

• Your agent cannot vote for you in a general election, cannot create or modify your will, or do anything else that cannot be delegated by the principal.

Probate

• As mentioned before, a power of attorney is not a suitable choice to appoint someone to manage your estate after you die.

CONCLUSIONS6

TIME IS ALWAYS AGAINST YOU

You don’t have to wait until an emergency arises

to create a power of attorney

In fact, doing so then is always worse than creating one when you have the luxury of time because you can think

more clearly about the issues involved

You can always create a springing power of

attorney that only takes effect should you become incapacitated later

Having the powers of attorney in place and

ready to use is always better than having to

scramble to create them

PART OF A LARGER ESTATE PLAN

Powers of attorney are very useful, but they are not a cure-all

A good estate plan includes other necessary elements

that have abilities powers of attorney cannot grant

Last will and testament

Nominate a guardian, executor, and decide how you want to dispose of your property after you die.

Trust

Transfer your property to the trust and nominate a trustee to manage it and distribute it as you direct.

LEARN MORE ABOUT MINNESOTA POWERS OF ATTORNEYMINNESOTA POWERS OF ATTORNEY

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